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Full text of "Copyright term, film labeling, and film preservation legislation : hearings before the Subcommittee on Courts and Intellectual Property of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 989, H.R. 1248, and H.R. 1734 ... June 1 and July 13, 1995"

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COPYRIGHT  TERM,  HLM  LABEUNG,  AND  HLM 
PRESERVATION  LEGISLATION 


Y  4.  J  89/1:104/53 


^ 


Copuriaht  Tern:  Flln  LabelinOi  and... 

BEFORE  THE 

SUBCOMMITTEE  OX 
COURTS  AND  INTELLECTUAL  PROPERTY 

OF  THE 

COMMITTEE  ON  THE  JUDICIARY 
HOUSE  OF  REPRESENTATIVES 

ONE  HUNDRED  FOURTH  CONGRESS 

FIRST  SESSION 
ON 

H.R.  989,  H.R.  1248,  and  H.R.  1734 

COPYRIGHT  TERM,  FILM  LABELING,  AND  FILM  PRESERVATION 

LEGISLATION 


JUNE  1  AND  JULY  13,  1995 


Serial  No.  53 


li"~iniil  III  lim  II  wmi 

': 


bupenntendenf  of  Documents 
DiiPOSlTORY 

JUiM  2  5  1996 

Boston  Public  Library 
lovernment  Dscunnents  Deot.  | 


Printed  for  the  use  of  the  Committee  on  the  Judiciary 


COPYRIGHT  TERM,  HLM  LABEUNG,  AND  HLM 
PRESERVATION  LEGISUTION 


HEARINGS 

BEFORE  THE 

SUBCOMMITTEE  ON 
COURTS  AND  INTELLECTUAL  PROPERTY 

OF  THE 

COMMITTEE  ON  THE  JUDICIARY 
HOUSE  OF  REPRESENTATIVES 

ONE  HUNDRED  FOURTH  CONGRESS 

FIRST  SESSION 
ON 

H.R.  989,  H.R.  1248,  and  H.R.  1734 

COPYRIGHT  TERM,  FILM  LABELING,  AND  FILM  PRESERVATION 

LEGISLATION 


JUNE  1  AND  JULY  13,  1995 


Serial  No.  53 


Printed  for  the  use  of  the  Committee  on  the  Judiciary 


U.S.   GOVERNMENT  PRINTING  OFFICE 
23-267  WASHINGTON  :  1996 

For  sale  by  the  U.S.  Government  Printing  Office 

Superintendent  of  Documents,  Congressional  Sales  Office,  Washington,  DC  20402 

ISBN  0-16-052625-6 


COMMITTEE  ON  THE  JUDICIARY 

HENRY  J.  HYDE,  Illinois,  Chairman 

CARLOS  J.  MOORHEAD,  California  JOHN  CONYERS,  Jr.,  Michigan 

F.  JAMES  SENSENBRENNER,  Jr.,  PATRICIA  SCHROEDER,  Colorado 

Wisconsin  BARNEY  FRANK,  Massachusetts 

BILL  McCOLLUM,  Florida  CHARLES  E.  SCHUMER,  New  York 

GEORGE  W.  GEKAS,  Pennsylvania  HOWARD  L.  BERMAN,  California 

HOWARD  COBLE,  North  Carolina  RICK  BOUCHER,  Virginia 

LAMAR  SMITH,  Texas  JOHN  BRYANT,  Texas 

STEVEN  SCHIFF,  New  Mexico  JACK  REED,  Rhode  Island 

ELTON  GALLEGLY,  Cahfomia  JERROLD  NADLER,  New  York 

CHARLES  T.  CANADY,  Florida  ROBERT  C.  SCOTT,  Virginia 

BOB  INGLIS,  South  Carolina  MELVIN  L.  WATT,  North  CaroUna 

BOB  GOODLATTE,  Virginia  XAVpiR  BECERRA,  California 

STEPHEN  E.  BUYER,  Indiana  JOSE  E.  SERRANO,  New  York 

MARTIN  R.  HOKE,  Ohio  ZOE  LOFGREN,  California 

SONNY  BONO,  CaUfomia  SHEILA  JACKSON  LEE,  Texas 
FRED  HEINEMAN,  North  Carolina 
ED  BRYANT,  Tennessee 
STEVE  CHABOT,  Ohio 
MICHAEL  PATRICK  FLANAGAN,  Illinois 
BOB  BARR,  Georgia 

Alan  F.  Coffey,  Jr.,  General  Counsel / Staff  Director 
Julian  Epstein,  Minority  Staff  Director 


Subcommittee  on  Courts  and  Intellectual  Property 

CARLOS  J.  MOORHEAD,  California,  Chairman 
F  JAMES  SENSENBRENNER,  JR.,  PATRICIA  SCHROEDER,  Colorado 

Wisconsin  JOHN  CONYERS,  Jr.,  Michigan 

HOWARD  COBLE,  North  CaroUna  HOWARD  L.  BERMAN,  California 

BOB  GOODLATTE,  Virginia  XAVIER  BECERRA,  CaUfomia 

SONNY  BONO,  CaUfomia  RICK  BOUCHER,  Virginia 

GEORGE  W.  GEKAS,  Pennsylvania  JERROLD  NADLER,  New  York 

ELTON  GALLEGLY,  CaUfomia 
CHARLES  T.  CANADY,  Florida 
MARTIN  R.  HOKE,  Ohio 

Thomas  E.  Mooney,  Chief  Counsel 

Joseph  V.  Wolfe,  Counsel 
Mitch  Glazier,  Assistant  Counsel 

Jon  Dudas,  Assistant  Counsel 
Betty  Wheeler,  Minority  Counsel 

(II) 


CONTENTS 


HEARINGS  DATES 

Page 

June  1,  1995  1 

July  13,  1995  155 

TEXTS  OF  BILLS 

H.R.  989  4 

H.R.  1248  8 

H.R.  1734  24 

OPENING  STATEMENT 

Moorhead,  Hon.  Carlos  J.,  a  Representative  in  Congress  from  the  State  of 
California,  and  chairman,  Subcommittee  on  Courts  and  Intellectual  Prop- 
erty    1 

WITNESSES 

Barshefsky,  Ambassador  Charlene,  Deputy  U.S.  Trade  Representative,  Office 

of  the  U.S.  Trade  RepresenUtive 205 

Belton,  John,  professor,  Rutgers  University,  on  behalf  of  the  Society  for  Cin- 
ema Studies  281 

Bergman,  Marilyn,  songwriter,  president  and  chairman  of  the  board,  Amer- 
ican Society  oi  Composers,  Authors  and  Publishers  56 

Coohdge,  Martha,  member,  Directors  Guild  of  America,  Inc 106 

Eves,  Jeffrey  P.,  president,  Video  Software  Dealers  Association,  on  behalf 

of  the  Committee  for  America's  Copyright  Community  113 

Jones,  Quincy,  songwriter  and  member,  AmSong,  Inc 233 

Karjala,  Dennis  S.,  professor  of  law,  Arizona  State  University,  on  behalf 

of  the  U.S.  Copyright  and  Intellectual  Property  Law  Professors 290 

Koenigsberg,  Fred,  counsel,  ASCAP 99 

Lehman,  Bruce  A.,  Assistant  Secretary  of  Commerce  and  Commissioner  of 

Patents  and  Trademarks  212 

Mancini,  Mrs.  Henry  112 

Murphy,  Edward  P.,  president  and  CEO,  National  Music  Publishers'  Associa- 
tion, Lac 74 

Patry,  William  F.,  professor,  Benjamin  N.  Cardozo  College  of  Law  312 

Peters,  Marybeth,  Register  of  Copyrights  and  Associate  Librarian  for  Copy- 
right Services,  Library  of  Congress  157 

Reimman,  J.H.,  professor  of  law,  Vanderbilt  University  355 

Richmond,  Edward,  president.  Association  of  Moving  Image  Archivists  64 

Saffer,  Judith  M.,  assistant  general  counsel.  Broadcast  Music,  Inc 141 

Valenti,  Jack,  president  and  CEO,  Motion  Picture  Association  of  America  50 

Weller,  Michael,  playwrite,  screenwriter,  and  member.  Writers  Guild  of  Amer- 
ica, East 132 

LETTERS,  STATEMENTS,  ETC.,  SUBMITTED  FOR  THE  HEARINGS 

Barrett,  Mary  Ellin,  daughter  of  Irving  Berlin:  Prepared  statement  272 

Barshefsky,  Ambassador  Charlene,  Deputy  U.S.  Trade  Representative,  Office 

of  the  U.S.  Trade  Representative:  Prepared  statement  207 

Belton,  John,  professor,  Rutgers  University,  on  behalf  of  the  Society  for  Cin- 
ema Studies:  Prepared  statement 285 


(III) 


IV 

Page 

Bergman,  Marilyn,  songwriter,  president  and  chairman  of  the  board,  Amer- 
ican Society  of  Composers,  Autnors  and  Publishers:  Prepared  statement  59 

Coolidge,  Martha,  member,  Directors  Guild  of  America,  Inc.:  Prepared  state- 
ment        109 

Donaldson,  Ellen,  Donaldson  Publishing  Co.,  vice  president,  AmSong:  Pre- 
pared statement  247 

Durham,  Marsha:  Prepared  statement  268 

Dylan,  Bob:  Prepared  statement  240 

Eves,  Jeffrey  P.,  president.  Video  Software  Dealers  Association,  on  behalf 
of  the  Committee  for  America's  Copyright  Community:  Prepared  statement        116 

Henley,  Don:  Prepared  statement  241 

Jones,  Quincy,  songwriter  and  member,  AmSong,  Inc.:  Prepared  statement 237 

Kariala,  Dennis  S.,  professor  of  law,  Arizona  State  University,  on  behalf 
01  the  U.S.  Copyright  and  Intellectual  Property  Law  Professors:  Prepared 

statement  292 

Lehman,  Bruce  A.,  Assistant  Secretary  of  Commerce  and  Commissioner  of 

Patents  and  Trademarks:  Prepared  statement  214 

Mamcini,  Mrs.  Henry:  Prepared  statement  246 

Menken,  Alan,  composer:  Prepared  statement 243 

Miller,  Betty  Kern:  Prepared  statement  270 

Murphy,  Edward  P.,  president  and  CEO,  National  Music  Publishers'  Associa- 
tion, Lac:  Prepared  statement  78 

Patry,  William  F.,  professor,  Benjamin  N.  Cardozo  College  of  Law:  Prepared 

statement  316 

Peters,  Marybeth,  Register  of  Copyrights  and  Associate  Librarian  for  Copy- 
right Services,  Library  of  Congress:  Prepared  statement  161 

Reicnman,  J.H.,  professor  of  law,  Vanderbilt  University:  Prepared  statement  .      359 
Richmond,  Edward,  president.  Association  of  Moving  Image  Archivists:  Pre- 
pared statement  67 

SafTer,  Judith  M.,  assistant  general  counsel.  Broadcast  Music,  Inc.:  Prepared 

statement  142 

Schroeder,  Hon.  Patricia,  a  Representative  in  Congress  from  the  State  of 

Colorado:  Prepared  statement 224 

Schoenbei*g,  E.  Randol:  Prepared  statement  264 

Sondheim,  Stephen:  Prepared  statement  244 

Valenti,  Jack,  president  and  CEO,  Motion  Picture  Association  of  America: 

Prepfired  statement 53 

Weller,  Michael,  playwrite,  screenwriter,  and  member.  Writers  Guild  of  Amer- 
ica, East:  Prepared  statement  135 

APPENDIX 
Material  submitted  for  the  hearings 423 


COPYRIGHT  TERM,  FILM  LABELING,  AND 
FILM  PRESERVATION  LEGISLATION 


THURSDAY,  JUNE  1,  1995 

House  of  Representatives, 
subcommitee  on  courts  and 

Intellectual  Property, 
Committee  on  the  Judiciary, 

Pasadena,  CA. 
The  subcommittee  met,  pursuant  to  notice,  at  9  a.m.,  at  the  Rich- 
ard H.  Chambers  U.S.  Court  of  Appeals  Building,  1255  Grand  Ave- 
nue, Pasadena,  CA,  Hon.  Carlos  J.  Moorhead  (chairman  of  the  sub- 
committee) presiding. 

Present:  Representatives  Carlos  J.  Moorhead,  Sonny  Bono,  John 
Conyers,  Jr.,  Howard  L.  Berman,  and  Xavier  Becerra. 

Also  present:  Joseph  V.  Wolfe,  counsel;  Mitch  Glazier,  assistant 
counsel;  Sheila  Wood,  secretary;  Julian  Epstein,  minority  staff  di- 
rector; and  Betty  Wheeler,  minority  counsel. 

OPENING  STATEMENT  OF  CHAIRMAN  MOORHEAD 

Mr.  Moorhead.  The  Subcommittee  on  Courts  and  Intellectual 
Property  will  come  to  order. 

Today,  the  subcommittee  is  conducting  a  hearing  on  H.R.  989, 
the  Copyright  Term  Extension  Act  of  1995;  H.R.  1248,  the  Film 
Disclosure  Act  of  1995;  and  H.R.  1734,  the  National  Film  Preserva- 
tion Act  of  1995. 

H.R.  989,  which  I  introduced,  would  extend  the  term  of  owner- 
ship of  a  copyrighted  work  from  the  life  of  the  author  plus  50  years 
to  the  life  of  the  author  plus  70  years.  I  am  pleased  that  the  rank- 
ing minority  member  of  the  subcommittee,  Representative  Schroe- 
der  and  Representatives  Coble,  Goodlatte,  Bono,  Gekas,  Berman, 
Nadler,  and  Clement  are  cosponsoring  the  legislation.  This  change 
will  bring  U.S.  law  into  conformity  with  that  of  the  European 
Union  whose  member  States  are  among  the  largest  users  of  our 
copyrighted  works. 

The  last  time  the  Congress  considered  and  enacted  copyright 
term  extension  legislation  was  1976.  At  that  time,  the  House  report 
noted  that  copyright  conformity  provides  certainty  and  simplicity  in 
international  business  dealings. 

The  intent  of  the  1976  act  was  twofold:  First,  to  bring  the  term 
of  the  works  by  Americans  into  agreement  with  the  then  minimum 
term  provided  by  European  countries;  and  second,  to  assure  the  au- 
thor and  his  or  her  heirs  of  the  fair  economic  benefits  derived  from 

(1) 


the  author's  work.  The  1976  law  needs  to  be  revisited  since  neither 
of  these  objectives  is  being  met. 

In  October  1993,  the  European  Union  adopted  a  directive  man- 
dating copyright  term  protection  equal  to  the  life  of  the  author  plus 
70  years  for  all  works  originating  in  the  European  Union,  no  later 
than  the  first  of  July  of  this  year.  The  E.U.  action  has  serious  trade 
implications  for  the  United  States. 

United  States  and  the  E.U.  nations  are  all  signatories  of  the 
Berne  Copyright  Convention,  which  includes  the  so-called  rule  of 
the  shorter  term,  which  accords  copyright  protection  for  a  term 
which  is  the  shorter  of  life  plus  70  years  or  the  term  of  copyright 
in  the  country  of  origin. 

Once  this  directive  is  implemented,  U.S.  works  will  only  be 
granted  copyright  protection  for  the  shorter  life  plus  50-year  term 
before  falling  into  the  public  domain. 

The  main  reasons  for  this  extension  of  term  are  fairness  and  eco- 
nomics. If  the  Congress  does  not  extend  to  Americans  the  same 
copyright  protection  afforded  their  counterparts  in  Europe,  Amer- 
ican creators  will  have  20  years  less  protection  than  their  Euro- 
pean counterparts;  20  years  during  which  Europeans  will  not  be 
paying  Americans  for  their  copyrighted  works.  And  whose  works  do 
Europeans  buy  more  than  any  other  country?  Works  of  American 
artists.  This  would  be  harmful  to  the  country  and  work  a  hardship 
on  American  creators. 

The  second  bill  before  us  this  morning  is  H.R.  1248,  the  Film 
Disclosure  Act  of  1995.  This  legislation  seeks  to  protect  the  rights 
of  filmmakers  who  fear  that  post  production  changes  in  films 
threatens  the  integrity  of  their  creative  works.  The  bill  would  re- 
quire that  films  be  labeled  to  indicate  what  alterations  have  been 
made  and  to  indicate  if  the  director,  screenwriter,  or  cinematog- 
rapher  objects  to  these  alterations. 

I  recall  when  the  former  chairman  of  this  subcommittee.  Bob 
Kastenmeier,  held  a  hearing  on  legislation  similar  to  H.R.  1248  at 
UCLA  back  in  January  1990.  At  that  hearing.  Bob  indicated  that 
it  was  his  belief  that  there  are  certain  criteria  that  Congress  must 
use  in  considering  any  dispute  of  this  nature. 

They  are:  First,  we  must  ask  the  proponents  of  change  to  bear 
the  burden  of  proving  that  the  change  is  necessary,  fair,  and  prac- 
tical. 

Second,  we  must  always  recognize  and  balance  the  legitimate 
rights  of  creators,  producers  or  copyright  holders,  and  the  public  in- 
terest. 

Third,  a  private  solution  negotiated  by  interested  parties  is  al- 
ways preferable  to  congressional  intervention.  I  think  this  set  of 
criteria  is  just  as  valuable  today  for  evaluating  a  proposal  such  as 
H.R.  1248. 

I  would  urge  all  of  the  parties  involved  to  get  together  some  time 
this  year,  or  as  early  as  possible,  and  try  to  see  what  arrangements 
can  be  made  that  is  agreeable  to  all  the  parties.  I  would  really  urge 
you  to  do  that.  I  think  it  would  be  very  serious  to  have  Congress 
make  the  determination.  And  I  think  that  all  of  you  work  in  the 
same  industry,  and  you  live  off  of  the  proceeds  of  these  films.  And, 
surely,  I  think  everybody  should  try  to  work  out  something  to- 
gether that  satisfies  everyone's  interests. 


The  third  piece  of  legislation  on  the  agenda  for  this  morning's 
hearing  is  H.R.  1734,  the  National  Film  Preservation  Act  of  1995. 
In  1988,  Congress  established  the  National  Film  Preservation 
Board  to  focus  on  the  important  goal  of  film  preservation. 

In  1992,  the  board  was  reauthorized  for  another  3  years.  The 
1992  act  also  called  for  a  1-year  study  of  the  national  film  preser- 
vation problem. 

Among  the  many  important  findings  in  the  film  preservation 
study  was  that  fewer  than  20  percent  of  feature  films  from  the 
1920's  survive  in  complete  form.  For  features  of  the  1910's,  the  sur- 
vival rate  falls  to  about  10  percent.  Of  films  made  before  1950,  only 
about  half  survive. 

In  addition  to  the  study,  the  1992  Reauthorization  Act  also  called 
for  a  plan  to  address  the  issues  of  film  preservation.  Completed  in 
August  1994,  the  plan  entitled,  "Redefining  Film  Preservation," 
was  the  product  of  6  months  of  negotiations  and  consensus  building 
among  archivists,  educators,  filmmakers,  and  film  industry  execu- 
tives. 

Under  H.R.  1734,  the  Librarian  of  Congress  would  be  able  to  con- 
tinue implementation  of  the  national  film  preservation  plan.  Title 
I  of  the  legislation  would  reauthorize  the  National  Film  Preserva- 
tion Board  while  title  II  would  establish  the  National  Film  Preser- 
vation Foundation  to  raise  funds  to  concentrate  on  those  films  that 
are  not  preserved  by  commercial  interests  such  as  public  domain, 
educational,  historical  footage,  and  so  forth  as  well  as  to  further 
other  parts  of  the  national  film  preservation  plan. 

This  morning  we  have  two  distinguished  panels  of  witnesses  and 
I  look  forward  to  their  testimony. 

[The  bills,  H.R.  989,  H.R.  1248,  and  H.R.  1734,  follow:] 


104th  congress 
1st  Session 


H.  R.  989 


To  amend  title  17,  United  States  Code,  with  respect  to  the  duration  of 
cop\Tight,  and  for  other  purposes. 


IX  THE  HOUSE  OF  REPRESEXTATR^S 

February  16,  1995 
Mr.  MOORHEAD  (for  himself,  Mrs.  SCHROEDER,  Mr.  COBLE,  Mr.  GOODLATTE, 
Mr.  Bo.N'O,  Mr.  Gekas,  Mr.  BERiiAN,  Mr.  Nadler,  Mr.  Clement,  and 
Mr.  Gallegly)  introduced  the  following  bill;  which  was  referred  to  the 
Committee  on  the  Judiciarv 


A  BILL 

To  amend  title  17,  United  States  Code,  with  respect  to 
the  duration  of  copyright,  and  for  other  purposes. 

1  Be  it  enacted  by  the  Senate  and  House  of  Bepresenta- 

2  tives  of  the  United  States  of  America  in  Congress  assembled, 

3  SECTION  1.  SHORT  TITLE. 

4  This  Act  may  be  cited  as  the  "Copyright  Term  Ex- 

5  tension  Act  of  1995". 

6  SEC.  2.  DURATION  OF  COPYRIGHT  PROVISIONS. 

7  (a)    Preemption    With    Respect    to    Other 

8  Laws. — Section  301(c)  of  title  17,  United  States  Code, 


2 

1  is  amended  by  striking  "Februan'  15,  2047"  each  place 

2  it  appears  and  inserting  "Februan'  15,  2067". 

3  (b)  Duration  of  Cop^-right:  Works  Created  Ox 

4  or  ^U^ter  J.VXUARY  1,  1978. — Section  302  of  title  17, 

5  United  States  Code,  is  amended — 

6  (1)  in  subsection  (a)  by  striking  "fiftA*"  and  in- 

7  serting  "70"; 

8  (2)  in  subsection  (b)  by  striking  "fiftj-"  and  in- 

9  serting  "70"; 

10  (3)  in  subsection  (c)  in  the  first  sentence — 

11  (A)  by  striking  "seventj'-five"  and  insert- 

12  ing  "95";  and 

13  (B)  by  striking  "one  hundred"  and  insert- 

14  ing  "120";  and 

15  (4)  in  subsection  (e)  in  the  first  sentence — 

16  (A)  by  striking  "seventA'-five"  and  insert- 

17  ing  "95"; 

18  (B)  by  striking  "one  hundred"  and  insert- 

19  ing  "120";  and 

20  (C)  by  striking  "fifty"  each  place  it  ap- 

21  pears  and  inserting  "70". 

22  (c)   Duration  of  Cop^tught:  Works  Created 

23  BUT  NOT  Published  or  Cop^tughted  Before  J^\xit- 

24  .VRY   1,    1978.— Section   303   of  title   17,   United  States 

25  Code,  is  amended  in  the  second  sentence — 

•HR  989  m 


3 

1  (1)    by   striking   "December   31,    2002"    each 

2  place    it    appears    and    inserting    "December    31, 

3  2012";  and 

4  (2)  by  striking  "December  31,  2027"  and  in- 

5  serting  "December  31,  2047". 

6  (d)   DUILVTIOX   OF   COP-iHIGHT:    SUBSISTLXG   COPY- 

7  RIGHTS. — 

8  (1)  Section  304  of  title  17,  United  States  Code, 

9  is  amended — 

10  (A)  in  subsection  (a) — 

11  (i)  in  paragraph  (1) — 

12  (I)  in  subparagraph  (B)  bj'  strik- 

13  ing  "47"  and  inserting  "67";  and 

14  (n)     in    subparagraph     (C)     by 

15  striking  "47"  and  inserting  "67"; 

16  (ii)  in  paragraph  (2) — 

17  (I)  in  subparagraph  (A)  by  strik- 

18  mg  "47"  and  inserting  "67";  and 

19  (II)     in    subparagraph    (B)    by 

20  striking  "47"  and  inserting  "67";  and 

21  (iii)  in  paragraph  (3) — 

22  (I)    in    subparagraph    (A)(i)    by 

23  striking  "47"  and  inserting  "67";  and 

24  (II)     in    subparagraph    (B)     by 

25  striking  "47"  and  inserting  "67";  and 

•HR  989  IH 


4 

1  (B)  in  subsection  (b)  by  striking  "seventy- 

2  five"  and  inserting  "95". 

3  (2)  Section  102  of  the  Cop>Tight  Renewal  Act 

4  of  1992  (Public  Law  102-307;   106  Stat.  266;   17 

5  U.S.C.  304  note)  is  amended — 

6  (A)  in  subsection  (c) — 

7  (i)    by   striking   "47"    and    inserting 

8  "67"; 

9  (ii)  by  striking  "(as  amended  by  sub- 

10  section  (a)  of  this  section)";  and 

11  (iii)  by  striking  "effective  date  of  this 

12  section"  each  place  it  appears  and  insert- 

13  ing  "effective  date  of  the  Copwight  Term 

14  Extension  Act  of  1995";  and 

15  (B)  in  subsection  (g)(2)  in  the  second  sen- 

16  tence  by  inserting  before  the  period  the  follow- 

17  ing:    ",    except   each    reference   to    forts'-seven 

18  years  in  such  provisions  shall  be  deemed  to  be 

19  67  years". 

20  SEC.  3.  EFFECTIVE  DATE. 

21  This  Act  and  the  amendments  made  by  this  Act  shall 

22  take  effect  on  the  date  of  the  enactment  of  tliis  Act. 

O 


•HR  989  ra 


104th  congress 
1st  Session 


H.R.1248 


To  amend  the  Lanham  Act  to  require  certain  disclosures  relating  to  materially 

altered  films. 


IN  THE  HOUSE  OF  REPRESENTATIVES 

March  15,  1995 
Mr.  Frank  of  Massachusetts  (for  himself,  Mr.  CONYERS,  and  Mr.  Bryant 
of  Texas)  introduced  the  following  bill;  which  was  referred  to  the  Com- 
mittee on  the  Judiciary 


A  BILL 

To  amend  the  Lanham  Act  to  require  certain  disclosures 
relating  to  materially  altered  films. 

1  Be  it  enacted  by  the  Senate  and  House  of  Representa- 

2  tives  of  the  United  States  of  America  in  Congress  assembled, 

3  SECTION  1.  SHORT  TITLE. 

4  This  Act  may  be  cited  as  the  "Film  Disclosure  Act 

5  of  1995". 

6  SEC.  2.  AMENDMENT  TO  THE  LANHAM  ACT. 

7  Section  43  of  the  Act  entitled  "An  Act  to  provide  for 

8  the  registration  and  protection  of  trade-marks  used  in 

9  commerce,  to  carry  out  the  provisions  of  certain  inter- 
10   national  conventions,  and  for  other  purposes",  approved 


2 

1  July  5,  1946,  commonly  known  as  the  Lanham  Act  (15 

2  U.S.C.    1125),   is   amended  by  adding  at  the  end  the 

3  following: 

4  "(c)(1)(A)  Any  distributor  or  network  that  proposes 

5  to  exploit  a  materially  altered  motion  picture  shall — 

6  "(i)  make  a  good  faith  effort  to  notify  each  ar- 

7  tistic  author  of  the  motion  picture  in  writing  and  by 

8  registered  mail  and  in  a  reasonable  amount  of  time 

9  prior  to  such  exploitation; 

10  "(ii)  determine  the  objections  of  any  artistic  au- 

1 1  thor  so  notified  to  any  material  alteration  of  the  mo- 

12  tion  picture; 

13  "(iii)  determine  the  objection  of  any  artistic  au- 

14  thor  so  notified  by  the  questionnaire  set  forth  in 

15  paragraph  (9)  to  any  type  of  future  material  alter- 

16  ations  which  are  in  addition  to  those  specifically  pro- 

17  posed  for  the  motion  picture  to  be  exploited; 

18  "(iv)  if  any  objections  under  clause  (ii)  or  (iii) 

19  are  determined,  include  the  applicable  label  under 

20  paragraph  (6)  or  (8)  in,  or  affix  such  label  to,  all 

21  copies  of  the  motion  picture  before — 

22  "(I)  the  pubhc  performance  of  the  materi- 

23  ally  altered  motion  picture  if  it  is  already  in  dis- 

24  tribution,  or 


•iHR  1248  ja 


10 

3 

1  "(11)  the  initial  distribution  of  the  materi- 

2  ally  altered  motion  picture  to  any  exhibitor  or 

3  retail  provider;  and 

4  "(v)  in  the  event  of  objections  by  an  artistic  au- 

5  thor  to  any  future  material  alterations,  include  or 

6  affix  such  objections  to  any  copy  of  the  motion  pic- 

7  ture  distributed  or  transmitted  to  any  exhibitor  or 

8  retail  provider. 

9  "(B)  Whenever  a  distributor  or  network  exploits  a 

10  motion  picture  which  has  already  been  materially  altered, 

1 1  such  distributor  or  network  shall  not  be  required  to  satisfy 

12  the  requirements  of  subparagraph  (A)  (i),  (ii),  and  (iii), 

13  if— 

14  "(i)  such  distributor  or  network  does  not  ftir- 

15  ther  materially  alter  such  motion  picture;  and 

16  "(ii)  such  motion  picture  was  materially  altered 

17  by  another  distributor  or  network  that  complied  fully 

18  with  all  of  the  requirements  of  subparagraph  (A). 

19  "(C)(i)  The  requirement  of  a  good  faith  effort  under 

20  subparagraph  (A)(i)  is  satisfied  if  a  distributor  or  network 

21  that  has  not  previously  been  notified  by  each  artistic  au- 

22  thor  of  a  motion  picture — 

23  "(I)  requests  in  writing  the  name  and  address 

24  of  each  artistic  author  of  the  motion  picture  from 

25  the  appropriate  professional  guild,  indicating  a  re- 

•HR  1248  IH 


11 

4 

1  sponse  date  of  not  earlier  than  30  days  after  the 

2  date  of  the  request,  by  which  the  appropriate  profes- 

3  sional  guild  must  respond;  and 

4  "(11)  upon  receipt  of  such  information  from  the 

5  appropriate  professional  guild  within  the  time  speci- 

6  fied  in  the  request,  notifies  each  artistic  author  of 

7  the  motion  picture  in  a  reasonable  amount  of  time 

8  before  the  exploitation  of  the  motion  picture  by  such 

9  network  or  distributor. 

10  "(ii)  The  notice  to  each  artistic  author  under  this 

11  paragraph  shall  contain  a  specific  date,  not  earlier  than 

12  30  days  after  the  date  of  such  notice,  by  which  the  individ- 

13  ual  so  notified  shall  respond  in  accordance  with  subpara- 

14  graph  (A)(ii).  Failure  of  the  artistic  author  or  the  appro- 

1 5  priate  professional  guild  to  respond  within  the  time  period 

16  specified  in  the  notice  shall  relieve  the  distributor  or  net- 

17  work  of  all  liability  under  subparagraph  (A). 

18  "(D)  The  requirements  of  this  paragraph  for  an  ex- 

19  hibitor  shall  be  limited  to — 

20  "(i)    broadcasting,    cablecasting,    exliibiting,    or 

21  distributing  all  labels  required  under  this  section  in 

22  their  entirety  that  are  included  with  or  distributed 

23  by  the  network  or  distributor  of  the  motion  picture; 

24  and 


•HR  1248>fH 


12 


5 

1  "(ii)  including  or  affixing  a  label  described  in 

2  paragraphs  (6)  and  (8)  on  a  materially  altered  mo- 

3  tion  picture  for  any  material  alterations  performed 

4  by  the  exhibitor  to  which  any  artistic  author  has  ob- 

5  jected  under  subparagraph  (A)(iii). 

6  "(E)(i)  The  provisions  of  this  paragraph  shall  apply 

7  with  respect  to  motion  pictures  intended  for  home  use 

8  through  either  retail  purchase  or  rental,  except  that  no 

9  requirement  imposed  under  this  paragraph  shall  apply  to 

10  a  motion  picture  which  has  been  packaged  for  distribution 

11  to  retail  providers  before  the  effective  date  of  this  sub- 

12  section. 

13  "(ii)  The  obligations  under  this  paragraph  of  a  retail 

14  provider  of  motion  pictures  intended  for  home  use  shall 

15  be  limited  to  including  or  distributing  all  labels  required 

16  under  this  paragraph  in  their  entirety  that  are  affixed  or 

17  included  by  a  distributor  or  network. 

18  "(F)  There  shall  be  no  consideration  in  excess  of  one 

19  dollar  given  in  exchange  for  an  artistic  author's  waiver  of 

20  any  objection  or  waiver  of  the  right  to  object  under  this 

21  subsection. 

22  "(2) (A)  Any  artistic  author  of  a  motion  picture  that 

23  is  exploited  within  the  United  States  who  believes  he  or 

24  she  is  or  is  likely  to  be  damaged  by  a  violation  of  this 

25  subsection  may  bring  a  civil  action  for  appropriate  relief, 

•HR  1248  IH 


13 


6 

1  as  provided  in  this  paragraph,  on  account  of  such  viola- 

2  tion,  without  regard  to  the  nationaUty  or  domicile  of  the 

3  artistic  author. 

4  "(B) (i)  In  any  action  under  subparagraph  (A),  the 

5  court  shall  have  power  to  grant  injunctions,  according  to 

6  the  principles  of  equity  and  upon  such  terms  as  the  court 

7  deems  reasonable,  to  prevent  the  violation  of  this  sub- 

8  section.  Any  such  injunction  may  include  a  provision  di- 

9  recting  the  defendant  to  file  with  the  court  and  serve  on 

10  the  plaintiff,  within  30  days  after  the  service  on  the  de- 

1 1  fendant  of  such  injunction,  or  such  extended  period  as  the 

12  court  may  direct,  a  report  in  writing  under  oath  setting 

13  forth  in  detail  the  manner  and  form  in  which  the  defend- 

14  ant  has  complied  with  the  injunction.  Any  such  injunction 

15  granted  upon  hearing,  after  notice  to  the  defendant,  by 

16  any  district  court  of  the  United  States — 

17  "(I)  may  be  served  on  the  parties  against  whom 

18  such  injunction  is  granted  anywhere  in  the  United 

19  States  where  they  may  be  found;  and 

20  "(11)  shall  be  operative  and  may  be  enforced  by 

21  proceedings  to  punish  for  contempt,  or  otherwise,  by 

22  the  court  by  which  such  injunction  was  granted,  or 

23  by  any  other  United  States  district  court  in  whose 

24  jurisdiction  the  defendant  may  be  found. 


14 


7 

1  "(ii)  When  a  violation  of  any  right  of  an  artistic  au- 

2  thor  is  estabhshed  in  any  civil  action  arising  under  this 

3  subsection,  the  plaintiff  shall  be  entitled  to  the  remedies 

4  provided  under  section  35(a). 

5  "(iii)   In  any  action  under  subparagraph   (A),  the 

6  court  may  order  that  all  film  packaging  of  a  materially 

7  altered  motion  picture  (including  film  packages  of  motion 

8  pictures  intended  for  home  use  through  either  retail  pur- 

9  chase  or  rental)  that  is  the  subject  of  the  violation  shall 

10  be  delivered  up  and  destroyed. 

11  "(C)  No  action  shall  be  maintained  under  this  para- 

1 2  graph  unless — 

13  "(i)  it  is  commenced  within   1  year  after  the 

14  right  of  action  accrues,  and 

15  "(ii)  if  brought  by  a  designee  described  in  para- 

16  graph  (5)(A)(ii),  it  is  commenced  within  the  term  of 

17  copyright  of  the  motion  picture  involved. 

18  "(3)  Any  disclosure  requirements  imposed  under  the 

19  common  law  or  statutes  of  any  State  respecting  the  mate- 

20  rial  alteration  of  motion  pictures  are  preempted  by  this 

21  subsection. 

22  "(4)  To  facilitate  the  location  of  a  potentially  ag- 

23  grieved  party,  each  artistic  author  of  a  motion  picture  may 

24  notify  the  copyright  owner  of  the  motion  picture  or  any 

25  appropriate  professional   guild.   The   professional   guilds 

•HR  1248  m 


15 


8 

1  may  each  maintain  a  Professional  Guild  Registry  includ- 

2  ing  the  names  and  addresses  of  artistic  authors  so  notify- 

3  ing  them  and  may  make  available  information  contained 

4  in  a  Professional  Guild  Registry  in  order  to  facilitate  the 

5  location  of  any  artistic  author  for  purposes  of  paragraph 

6  (1)(A).  No  cause  of  action  shall  accrue  against  any  profes- 

7  sional  guild  for  failure  to  create  or  maintain  a  Professional 

8  Guild  Registry  or  for  any  failure  to  provide  information 

9  pursuant  to  paragraph  (l)(A)(i). 

10  "(5)  As  used  in  this  subsection — 

11  "(A)  the  term  'artistic  author'  means — 

12  "(i)    the   principal    director   and   principal 

13  screenwriter  of  a  motion  picture  and,  to  the  ex- 

14  tent  a  motion  picture  is  colorized  or  its  photo- 

15  graphic  images  materially  altered,  the  principal 

16  cinematographer  of  the  motion  picture;  and 

17  "(ii)  a  person  designated  by  an  individual 

18  described  in   clause   (i),   if  the   designation   is 

19  made  in  writing  and  signed  by  such  individual; 

20  "(B)  the  term  'colorize'  means  to  add  color,  by 

21  whatever  means,  to  a  motion  picture  originally  made 

22  in   black    and   white,    and   the    term    'colorization' 

23  means  the  act  of  colorizing; 

24  "(C)  the  term  'distributor'— 


•HR  1248  IH 


16 


9 

1  "(i)    means   any  person,   vendor,    or   syn- 

2  dicator  who  engages  in  the  wholesale  distribu- 

3  tion  of  motion  pictures  to  any  exhibitor,  net- 

4  work,  retail  provider,  or  other  person  who  pub- 

5  licly  performs  motion  pictures  by  means  of  any 

6  technology,  and 

7  "(ii)  does  not  include  laboratories  or  other 

8  providers  of  technical  services  to  the  motion  pic- 

9  ture,  video,  or  television  industry; 

10  "(D)  the  term  'editing'  means  the  purposeful  or 

11  accidental  removal  of  existing  material  or  insertion 

12  of  new  material; 

13  "(E)    the    term    'exhibitor'    means    any    local 

14  broadcast  station,  cable  system,  airline,  motion  pic- 

15  ture  theater,  or  other  person  that  publicly  performs 

16  a  motion  picture  by  means  of  any  technology; 

17  "(F)  the  term  'exploit'  means  to  exhibit  publicly 

18  or  offer  to  the  public  through  sale  or  lease,  and  the 

19  ,  term  'exploitation'  means  the  act  of  exploiting; 

20  "(G)     the    term     'film'     or     'motion     picture' 

21  means — 

22  "(i)  a  theatrical  motion  picture,  after  its 

23  publication,  of  60  minutes  duration  or  greater, 

24  intended    for    exhibition,    public    performance, 

25  public  sale  or  lease,  and 

•HR  1248  IH 


17 

10 

1  "(ii)   does   not  include   episodic   television 

2  programs  of  less  than  60  minutes  duration  (ex- 

3  elusive  of  commercials),   motion  pictures  pre- 

4  pared  for  private  commercial  or  industrial  pur- 

5  poses,  or  advertisements; 

6  "(H)  the  term  Uexiconning'  means  altering  the 

7  sound  track  of  a  motion  picture  to  conform   the 

8  speed  of  the  vocal  or  musical  portion  of  the  motion 

9  picture  to  the  visual  images  of  the  motion  picture, 

10  in  a  case  in  which  the  motion  picture  has  been  the 

1 1  subject  of  time  compression  or  expansion; 

12  "(I)  the  terms  'materially  alter'  and  'material 

13  alteration' — 

14  "(i)  refer  to  any  change  made  to  a  motion 

15  picture; 

16  "(ii)  include,  but  are  not  limited  to,  the 

17  processes  of  colorization,  lexiconning,  time  com- 

18  pression  or  expansion,  panning  and  scanning, 

19  and  editing;  and 

20  "(iii)  do  not  include  insertions  for  commer- 

21  cial  breaks  or  public  service  announcements,  ed- 

22  iting  to  comply  with  the  requirements  of  the 

23  Federal  Communications  Commission   (in  this 

24  subparagraph  referred  to  as  the  'FCC'),  trans- 

25  fer  of  film  to  videotape  or  any  other  secondary 

•HR  1248  IH 


18 

11 

1  media  preparation  of  a  motion  picture  for  for- 

2  eign  distribution  to  the  extent  that  subtitling 

3  and   editing   are   Umited   to   those   alterations 

4  made  under  foreign   standards  which   are   no 

5  more  stringent  than  existing  FCC  standards,  or 

6  activities  the  purpose  of  which  is  the  restoration 

7  of  the  motion  picture  to  its  original  version; 

8  "(J)  the  term  'network'  means  any  person  who 

9  distributes  motion  pictures  to  broadcasting  stations 

10  or  cable  systems  on  a  regional  or  national  basis  for 

1 1  public  performance  on  an  interconnected  basis; 

12  "(K)  the  term  'panning  and  scanning'  means 

13  the  process  by  which  a  motion  picture,  composed  for 

14  viewing  on  theater  screens,  is  adapted  for  viewing  on 

15  television   screens   by  modification   of  the   ratio   of 

16  width  to  height  of  the  motion  picture  and  the  selec- 

17  tion,  by  a  person  other  than  the  principal  director  of 

18  the  motion  picture,  of  some  portion  of  the  entire  pic- 

19  ture  for  viewing; 

20  "(L)  the  term  'professional  guild'  means — 

21  "(i)  in  the  case  of  directors,  the  Directors 

22  Guild  of  America  (DGA); 

23  "(ii)  in  the  case  of  screenwriters,  the  Writ- 

24  ers  Guild  of  America-West  (WGA-W)  and  the 

25  Writers  Guild  of  America-East  (WGA-E);  and 

•HR  1248  IH 


19 

12 

1  "(iii)  in  the  case  of  cinematographers,  the 

2  International  Photographers  Guild  (IPG),  and 

3  the    American    Society    of    Cinematographers 

4  (ASC); 

5  "(M)    the   term    'Professional   Guild   Registry' 

6  means  a  list  of  names  and  addresses  of  artistic  au- 

7  thors  that  is  readily  available  from  the  files  of  a  pro- 

8  fessional  guild; 

9  "(N)  the  term  'publication'  means,  with  respect 

10  to  a  motion  picture,  the  first  paid  public  exhibition 

11  of  the  work  other  than  previews,  trial  runs,  and  fes- 

12  tivals; 

13  "(O)  the  term  'retail  provider'  means  the  pro- 

14  prietor  of  a  retail  outlet  that  sells  or  leases  motion 

15  pictures  for  home  use; 

16  "(P)  the  term  'secondary  media'  means  any  me- 

17  dium,  including,  but  not  Hmited  to,  video  cassette  or 

18  video  disc,  other  than  television  broadcast  or  theat- 

19  rical  release,  for  use  on  which  motion  pictures  are 

20  sold,  leased,  or  distributed  to  the  public; 

21  "(Q)  the  term  'syndicator'  means  any  person 

22  who  distributes  a  motion  picture  to  a  broadcast  tele- 

23  vision  station,  cable  television  system,  or  any  other 

24  means  of  distribution  by  which  programming  is  de- 

25  livered  to  television  viewers; 

•HR  1248  IH 


20 


13 

1  "(R)  the  terms  'time  compression'  and  'time  ex- 

2  pansion'  mean  the  alteration  of  the  speed  of  a  mo- 

3  tion  picture  or  a  portion  thereof  with  the  result  of 

4  shortening  or  lengthening  the  running  time  of  the 

5  motion  picture;  and 

6  "(S)  the  term  'vendor'  means  the  wholesaler  or 

7  packager  of  a  motion  picture  which  is  intended  for 

8  wholesale  distribution  to  retail  providers. 

9  "(6) (A)  A  label  for  a  materially  altered  version  of  a 

10  motion  picture  intended  for  public  performance  or  home 

11  use  shall  consist  of  a  panel  card  immediately  preceding 

12  the  commencement  of  the  motion  picture,  which  bears  one 

13  or  more  of  the  following  statements,  as  appropriate,  in  leg- 

14  ible  type  and  displayed  on  a  conspicuous  and  readable 

15  basis: 

16  '"THIS  FILM  IS  NOT  THE  VERSION  ORIGI- 

17  NALLY  RELEASED.  mins.  and  sees. 

18  have  been  cut  [or,  if  appropriate,  added].  The  director, 

19   ,       and 

20  screenwriter, ,  object  because  this 

21  alteration  changes  the  narrative  and/or  characterization. 

22  It  has  (also)  been  panned  and  scanned.  The  director  and 

23  cinematographer, ,    object    be- 

24  cause   this    alteration    removes   visual    information    and 

25  changes  the  composition  of  the  images.  It  has  (also)  been 

•HR  1248  IH 


21 

14 

1  colorized.  Colors  have  been  added  by  computer  to  the 

2  original  black  and  white  images.  The  director  and  cine- 

3  matographer  object  to  this  alteration  because  it  eliminates 

4  the  black  and  white  photography  and  changes  the  photo- 

5  graphic  images  of  the  actors.  It  has  (also)  been  electroni- 

6  cally  speeded  up  (or  slowed  down).  The  director  objects 

7  because  this  alteration  changes  the  pace  of  the  perform- 

8  anees.' 

9  "(B)  A  label  for  a  motion  picture  that  has  been  mate- 

10  rially  altered  in  a  manner  not  described  by  any  of  the  label 

11  elements  set  forth  in  subparagraph  (A)  shall  contain  a 

12  statement  similar  in  form  and  substance  to  those  set  forth 

13  in  subparagraph  (A)  which  accurately  describes  the  mate- 

1 4  rial  alteration  and  the  objection  of  the  artistic  author. 

15  "(7)  A  label  for  a  motion  picture  which  has  been  ma- 

16  terially  altered  in  more  than  one  manner,  or  of  which  an 

17  individual  served  as  more  than  one  artistic  author,  need 

1 8  only  state  the  name  of  the  artistic  author  once,  in  the  first 

19  objection  of  the  artistic  author  so  listed.  In  addition,  a 

20  label  for  a  motion  picture  which  has  been  materially  al- 

21  tered  in  more  than  one  manner  need  only  state  once,  at 

22  the  beginning  of  the  label:  'THIS  FILM  IS  NOT  THE 

23  VERSION  ORIGINALLY  RELEASED.'. 

24  "(8)  A  label  for  a  film  package  of  a  materially  altered 

25  motion  picture  shall  consist  of — 


22 

15 

1  "(A)  an  area  of  a  rectangle  on  the  front  of  the 

2  package  which  bears,  as  appropriate,  one  or  more  of 

3  the  statements  Usted  in  paragraph  (6)  in  a  conspicu- 

4  ous  and  legible  type  in  contrast  by  typography,  lay- 

5  out,  or  color  with  other  printed  matter  on  the  pack- 

6  age;  and 

7  "(B)  an  area  of  a  rectangle  on  the  side  of  the 

8  package  which  bears,  as  appropriate,  one  or  more  of 

9  the  statements  listed  in  paragraph  (6)  in  a  conspicu- 

10  ous  and  legible  type  in  contrast  by  typography,  lay- 

11  out,  or  color  with  other  printed  matter  on  the  pack- 

12  age. 

13  "(9)    The  questionnaire   required  under  paragraph 

14  (l)(A)(iii)  shall  consist  of  the  following  statement  and  re- 

15  lated  questions: 

16  "  'In  order  to  conform  [insert  name  of  motion 

17  picture],  of  which  you  are  an  "artistic  author",  to 

18  ancillary  media  such  as  television,  airline  exhibition, 

19  video  cassettes,  video  discs,  or  any  other  media,  do 

20  you  object  to: 

21  "'(a)  Editing  (purposeful  or  accidental  deletion  or 

22  addition  of  program  material)? 

23  Yes No 

24  "'(b)  Time  compression/time  expansion/lexiconning? 

25  Yes No 

•HR  1248  IH 


23 


16 

1  "  '(c)  Panning  and  scanning? 

2  Yes No 


3  "  '(d)  Colorization,  if  the  motion  picture  was  origi- 

4  nally  made  in  black  and  white? 

5  Yes         No '." 

6  SEC.  4.  EFFECTIVE  DATE. 

7  This  Act  and  the  amendments  made  by  this  Act  shall 

8  take  effect  180  days  after  the  date  of  the  enactment  of 

9  this  Act. 

O 


•HR  IMS  ipi- 


24 


104th  congress 
1st  Session 


H.R.1734 


To  reauthorize  the  National  Film  Preservation  Board,  and  for  other  purposes. 


IN  THE  HOUSE  OF  REPRESENTATIVES 

May  25,  1995 
Mr.  MOORHEAD  (for  himself,  Mr.  CoBLE,  and  Mr.  BOXO)  introduced  the  fol- 
lowing bill;  which  was  referred  to  the  Committee  on  the  Judiciary,  and 
in  addition  to  the  Committee  on  House  Oversight,  for  a  period  to  be  sub- 
sequently determined  by  the  Speaker,  in  each  case  for  consideration  of 
such  provisions  as  fall  \vithin  the  jurisdiction  of  the  committee  concerned 


A  BILL 

To  reauthorize  the  National  Film  Preservation  Board,  and 
for  other  purposes. 

1  Be  it  enacted  by  the  Senate  and  House  of  Representa- 

2  tives  of  the  United  States  of  America  in  Congress  assembled, 

3  TITLE  I— REAUTHORIZATION  OF 

4  THE  NATIONAL  FILM  PRESER- 

5  VATION  BOARD 

6  SEC.  101.  SHORT  TITLE. 

7  This  title  may  be  cited  as  the  "National  Film  Preser- 

8  vationActof  1995". 


25 


2 

1  SEC.  102.  NATIONAL  FILM  REGISTRY  OF  THE  LIBRARY  OF 

2  CONGRESS. 

3  The  Librarian  of  Congress  (hereafter  in  this  Act  re- 

4  ferred  to  as  the  "Librarian")  shall  continue  the  National 

5  Film  Registry  established  and  maintained  under  the  Na- 

6  tional  Film  Preservation  Act  of  1988  (Public  Law  100- 

7  446),  and  the  National  Film  Preservation  Act  of  1992 

8  (Public  Law  102-307)  pursuant  to  the  provisions  of  this 

9  title,  for  the  purpose  of  maintaining  and  preserving  films 

10  that  are  culturally,  historically,  or  aesthetically  significant. 

1 1  SEC.  103.  DUTIES  OF  THE  LIBRARIAN  OF  CONGRESS. 

12  (a)  Powers. — 

13  (1)   In   general. — The  Librarian  shall,   after 

14  consultation  with  the  Board  established  pursuant  to 

15  section  104 — 

16  (A)    continue   the    implementation   of  the 

17  comprehensive  national  film  preservation  pro- 

18  gram  for  motion  pictures  established  under  the 

19  National  Film  Preservation  Act  of  1992,  in  con- 

20  junction  with  other  film   archivists,   educators 

21  and  historians,  copyright  ovmers,  film  industry 

22  representatives,  and  others  involved  in  activities 

23  related  to  film  preservation,  taking  into  account 

24  the  objectives  of  the  national  film  preservation 

25  study  and  the  comprehensive  national  plan  con- 

•HR  1734  m 


26 

3 

1  ducted  under  the   National  Film  Preservation 

2  Act  of  1992.  This  program  shall— 

3  (i)  coordinate  activities  to  assure  that 

4  efforts  of  archivists  and  copyright  owners, 

5  and  others  in  the  public  and  private  sector, 

6  are  effective  and  complementary; 

7  (ii)  generate  public  awareness  of  and 

8  support  for  these  activities; 

9  (iii)  increase  accessibility  of  films  for 

10  educational  purposes;  and 

11  (iv)  undertake  studies  and  investiga- 

12  tions    of    film    preservation    activities    as 

13  needed,  including  the  efficacy  of  new  tech- 

14  nologies,  and  recommend  solutions  to  im- 

15  prove  these  practices; 

16  (B)  establish  criteria  and  procedures  under 

17  which  films  may  be  included  in  the  National 

18  Film  Registry,  except  that  no  film  shall  be  eligi- 

19  ble  for  inclusion  in  the  National  Film  Registry 

20  until  10  years  after  such  film's  first  publication; 

21  (C)  establish  procedures  under  which  the 

22  general  public  may  make  recommendations  to 

23  the  Board  regarding  the  inclusion  of  films  in 

24  the  National  Film  Registry;  and 


•HR  1734  IH 


27 


4 

1  (D)  determine  which  films  satisfy  the  cri- 

2  teria  estabhshed  under  subparagraph  (B)  and 

3  quahfy  for  inclusion  in  the  National  Film  Reg- 

4  istry,  except  that  the  Librarian  shall  not  select 

5  more  than  25  films  each  year  for  inclusion  in 

6  the  Registry. 

7  (2)  Publication  of  films  ix  registry. — The 

8  Librarian  shall  publish  in  the  Federal  Register  the 

9  name  of  each  film  that  is  selected  for  inclusion  in 

10  the  National  Film  Registry. 

11  (3)  Seal. — The  Librarian  shall  provide  a  seal 

12  to  indicate  that  a  film  has  been  included  in  the  Na- 

13  tional  Film  Registry  and  is  the  Registry  version  of 

14  that  film.   The  Librarian  shall  establish  guidelines 

15  for  approval  of  the  use  of  the  seal  in  accordance 

16  with  subsection  (b). 

17  (b)  Use  of  Seal. — The  seal  provided  under  sub- 

18  section  (a)(3)  may  only  be  used  on  film  copies  of  the  Reg- 

19  istry  version  of  a  film.  Such  seal  may  be  used  only  after 

20  the  Librarian  has  given  approval  to  those  persons  seeking 

21  to  apply  the  seal  in  accordance  with  the  guidelines  under 

22  subsection  (a)(3).  In  the  case  of  copyrighted  works,  only 

23  the  copyright  owner  or  an  authorized  licensee  of  the  copy- 

24  right  owner  may  place  or  authorize  the  placement  of  the 

25  seal  on  any  film  copy  of  a  Registry  version  of  a  film  se- 

•HR  1734  IH 


28 

5 

1  lected  for  inclusion  in  the  National  Film  Registry,  and  the 

2  Librarian  may  place  the  seal  on  any  film  copy  of  the  Reg- 

3  istry  version  of  any  film  that  is  maintained  in  the  National 

4  Film  Registry  Collection  in  the  Library  of  Congress.  Any- 

5  one  authorized  to  place  the  seal  on  any  film  copy  of  any 

6  Registry  version  of  a  film  may  accompany  such  seal  with 

7  the  following  language:  "This  film  was  selected  for  inclu- 

8  sion  in  the  National  Film  Registry  by  the  National  Film 

9  Presei'vation  Board  of  the  Library  of  Congress  because  of 

10  its  cultural,  historical,  or  aesthetic  significance.". 

1 1  SEC.  104.  NATIONAL  FILM  PRESERVATION  BOARD. 

12  (a)  Number  and  Appointment. — 

13  (1)   Members. — The  Librarian  shall  estabhsh 

14  in  the  Library  of  Congress  a  National  Film  Preser- 

15  vation  Board  to  be  comprised  of  20  members,  who 

16  shall  be  selected  by  the  Librarian  in  accordance  with 

17  this  section.  Subject  to  subparagraphs  (C)  and  (N), 

18  the  Librarian  shall  request  each  organization  listed 

19  in  subparagraphs  (A)  through  (Q)  to  submit  a  list 

20  of  3  candidates  qualified  to  serve  as  a  member  of  the 

21  Board.   Except  for  the  members-at-large  appointed 

22  under  subparagraph  (2),  the  Librarian  shall  appoint 

23  one  member  from  each  such  list  submitted  by  such 

24  organizations,  and  shall  designate  from  that  list  an 

25  alternate  who  may  attend  at  Board  expense  those 

•HR  1734  Itf 


29 


6 

1  meetings  to  which  the  individual  appointed  to  the 

2  Board  cannot  attend.  The  organizations  are  the  fol- 

3  lowing: 

4  (A)  The  Academy  of  Motion  Picture  Arts 

5  and  Sciences. 

6  (B)  The  Directors  Guild  of  America. 

7  (C)    The  Writers   Guild   of  America.   The 

8  Writers  Guild  of  America  East  and  the  Writers 

9  Guild   of  America  West   shall   each   nominate 

10  three  candidates,  and  a  representative  from  one 

11  organization  shall  be  selected  as  the  member 

12  and  a  representative  from  the  other  organiza- 

13  tion  as  the  alternate. 

14  (D)  The  National  Society  of  Film  Critics. 

15  (E)  The  Society  for  Cinema  Studies. 

16  (F)  The  American  Film  Institute. 

17  (G)  The  Department  of  Theatre,  Film  and 

18  Television  of  the  College  of  Fine  Arts  at  the 

19  University  of  California,  Los  Angeles. 

20  (H)   The  Department  of  Film   and  Tele- 

21  vision  of  the  Tisch  School  of  the  Arts  at  New 

22  York  University. 

23  (I)  The  University  Film  and  Video  Asso- 

24  ciation. 


•HR  1734  IH 


0'a_'>C7      r»«?        n 


30 

7 

1  (J)    The    Motion    Picture   Association    of 

2  America. 

3  (K)   The  Alhance  of  Motion  Picture  and 

4  Television  Producers. 

5  (L)  The  Screen  Actors  Guild  of  America. 

6  (M)  The  National  Association  of  Theater 

7  Owners. 

8  (N)  The  American  Society  of  Cinematog- 

9  raphers    and   the   International   Photographers 

10  Guild,  which  shall  jointly  submit  one  list  of  3 

11  candidates  from  which  a  member  and  alternate 

12  will  be  selected. 

13  (0)   The   United   States   Members  of  the 

14  International  Federation  of  Film  Archives. 

15  (P)  The  Association  of  Moving  Image  Ar- 

16  chivists. 

17  (Q)     The     Society     of     Composers     and 

18  Lyricists. 

19  (2)  ,  Members- AT-LARGE. — In  addition  to  the 

20  Members   appointed  under  paragraph   (1),   the  Li- 

21  brarian  shall  appoint  up  to  3  members-at-large.  The 

22  Librarian   shall   also   select   an   alternate   for   each 

23  member  at-large,  who  may  attend  at  Board  expense 

24  those  meetings  which  the  member  at-large  cannot 

25  attend. 

•HR  1734  IH 


31 

8 

1  (b)  Chair. — The  Librarian  shall  appoint  one  member 

2  of  the  Board  to  serve  as  Chair. 

3  (c)  Term  of  Office. — 

4  (1)  Terms. — The  term  of  each  member  of  the 

5  Board  shall  be  5  years,  except  that  there  shall  be  no 

6  limit  to  the  number  of  terms  that  any  individual 

7  member  may  serve. 

8  (2)    Removal    of    member    or    orgaxiza- 

9  TION. — The  Librarian  shall  have  the  authority  to  re- 

10  move  any  member  of  the  Board,  or  the  organization 

11  listed  in  subsection  (a)  such  member  represents,  if 

12  the  member,  or  organization,  over  any  consecutive  2- 

13  year  period,   fails  to  attend  at  least  one  regularly 

14  scheduled  Board  meeting. 

15  (3)  Vacancies. — A  vacancy  in  the  Board  shall 

16  be  filled  in  the  manner  in  which  the  original  appoint- 

17  ment  was  made  under  subsection  (a),  except  that  the 

18  Librarian  may  fill  the  vacancy  from  a  list  of  can- 

19  didates  previously  submitted  by  the  organization  or 

20  organizations  involved.  Any  member  appointed  to  fill 

21  a  vacancy  before   the   expiration   of  the   term   for 

22  which  his  or  her  predecessor  was  appointed  shall  be 

23  appointed  for  the  remainder  of  such  term. 

24  (d)  Quorum. — 11  members  of  the  Board  shall  con- 

25  stitute  a  quorum  but  a  lesser  number  may  hold  hearings. 

•HR  1734  IH 


32 


9 

1  (e)  Basic  Pay. — Members  of  the  Board  shall  serve 

2  without  pay.  While  away  from  their  home  or  regular  places 

3  of  business  in  the  performance  of  functions  of  the  Board, 

4  members  of  the  Board  shall  be  allowed  travel  expenses, 

5  including  per  diem  in  lieu  of  subsistence,  in  the  same  man- 

6  ner  as  persons  employed  intermittently  in  Government 

7  service  are  allowed  expenses  under  section  5701  of  title 

8  5,  United  States  Code. 

9  (f)  Meetings. — The  Board  shall  meet  at  least  once 

10  each  fiscal  year.  Meetings  shall  be  at  the  call  of  the  Li- 

1 1  brarian. 

12  (g)  Conflict  op  Interest. — The  Librarian  shall 

13  establish  rules  and  procedures  to  address  any  potential 

14  conflict  of  interest  between  a  member  of  the  Board  and 

15  responsibilities  of  the  Board. 

1 6  SEC.  105.  RESPONSmiLmES  AND  POWERS  OF  BOARD. 

17  (a)  In  General. — The  Board  shall  review  nomina- 

18  tions  of  films  submitted  to  it  for  inclusion  in  the  National 

19  Film  Registry  and  consult  with  the  Librarian,  as  provided 

20  in  section  103,  wdth  respect  to  the  inclusion  of  such  films 

21  in  the  Registry  and  the  preservation  of  these  and  other 

22  films  that  are  culturally,  historically,  or  aesthetically  sig- 

23  nificant. 

24  (b)  Nomination  of  Films. — The  Board  shall  con- 

25  sider,  for  inclusion  in  the  National  Film  Registry,  nomina- 


HR1734ffi 


33 


10 

1  tions  submitted  by  the  general  public  as  well  as  represent- 

2  atives  of  the  film  industry,  such  as  the  guilds  and  societies 

3  representing  actors,  directors,  screenwriters,  cinematog- 

4  raphers,  and  other  creative  artists,  producers,  and  film 

5  critics,  archives  and  other  film  preservation  organizations, 

6  and  representatives  of  academic   institutions  with   film 

7  study  programs.  The  Board  shall  nominate  not  more  than 

8  25  films  each  year  for  inclusion  in  the  Registry. 

9  (c)  Powers. — 

10  (1)  In  general. — The  Board  may,  for  the  pur- 

11  pose  of  carrying  out  its  duties,  hold  such  hearings, 

12  sit  and  act  at  such  times  and  places,  take  such  testi- 

13  mony,  and  receive  such  evidence,  as  the  Librarian 

14  and  the  Board  consider  appropriate. 

15  (2)    Service   on   foundation. — Two   sitting 

16  members  of  the  Board  shall  be  appointed  by  the  Li- 

17  brarian,  and  shall  serve,  as  Board  members  of  the 

18  National  Film  Preservation  Foundation,  in  accord- 

19  ance  with  section  203. 

20  SEC.  106.  NATIONAL  FILM  REGISTRY  COLLECTION  OF  THE 

21  LIBRARY  OF  CONGRESS. 

22  (a)  Acquisition  of  Archival  Quality  Copies. — 

23  The  Librarian  shall  endeavor  to  obtain,  by  gift  from  the 

24  owner,  an  archival  quality  copy  of  the  Registry  version  of 

25  each  film  included  in  the  National  Film  Registry.  When- 

•HR  1734  ta 


34 

11 

1  ever  possible,  the  Librarian  shall  endeavor  to  obtain  the 

2  best   surviving   materials,    including   preprint   materials. 

3  Copyright  owners  and  others  possessing  copies  of  such 

4  materials  are  strongly  encouraged,  to  further  the  preserva- 

5  tion  purposes  of  this  Act,  to  provide  preprint  and  other 

6  archival  elements  to  the  Library  of  Congress. 

7  (b)  Additional  Materials. — The  Librarian  shall 

8  endeavor  to  obtain,  for  educational  and  research  purposes, 

9  additional  materials  related  to  each  film  included  in  the 

10  National  Film  Registry,  such  as  background  materials, 

1 1  production  reports,  shooting  scripts  (including  continuity 

12  scripts)  and  other  similar  materials. 

13  (c)  Property  of  United  States. — All  copies  of 

14  films  on  the  National  Film  Registry  that  are  received  as 

15  gifts  or  bequests  by  the  Librarian  and  other  materials  re- 

16  ceived  by  the  Librarian  under  subsection  (b),  shall  become 

17  the  property  of  the  United  States  Government,  subject  to 

18  the  provisions  of  title  17,  United  States  Code. 

19  (d)  Natio.xal  Film  Registry  Collection. — ^All 

20  copies  of  films  on  the  National  Film  Registry  that  are  re- 

21  ceived  by  the  Librarian  under  subsection  (a),  and  other 

22  materials  received  by  the  Librarian  under  subsection  (b), 

23  shall  be  maintained  in  the  Library  of  Congress  and  be 

24  known  as  the  "National  Film  Registiy  Collection  of  the 

25  Library  of  Congress".  The  Librarian  shall,  by  regulation, 

•kR  1734  Ob 


35 

12 

1  and  in  accordance  with  title  17,  United  States  Code,  pro- 

2  vide  for  reasonable  access  to  the  films  and  other  materials 

3  in  such  collection  for  scholarly  and  research  purposes. 

4  SEC.  107.  SEAL  OF  THE  NATIONAL  FILM  REGISTRY. 

5  (a)  Use  of  the  Seal. — 

6  (1)  Prohibition  on  distribution  and  exhi- 

7  BITION. — No  person  shall  knowingly  distribute  or  ex- 

8  hibit  to  the  public  a  version  of  a  film  or  any  copy 

9  of  a  film  which  bears  the  seal  described  in  section 

10  103(a)(3)  if  such  film— 

11  (A)  is  not  included  in  the  National  Film 

12  Registry;  or 

13  (B)  is  included  in  the  National  Film  Reg- 

14  istry,  but  such  film  or  film  copy  has  not  been 

15  approved  for  use  of  the  seal  by  the  Librarian 

16  pursuant  to  section  103(a)(1)(D). 

17  (2)  Prohibition  on  promotion. — No  person 

18  shall  knowingly  use  the   seal   described   in   section 

19  103(a)(3)  to  promote  any  version  of  a  film  or  film 

20  copy  other  than  a  Registry  version. 

21  (b)  Effective  Date  op  the  Seal. — The  use  of  the 

22  seal  described  in  section  103(a)(3)  shall  be  effective  for 

23  each  film  after  the  Librarian  publishes  in  the  Federal  Reg- 

24  ister,  in  accordance  with  section  103(a)(2),  the  name  of 


•HR  1)34  m 


36 

13 

1  that  film  as  selected  for  inclusion  in  the  National  Film 

2  Registry. 

3  SEC.  108.  REMEDIES. 

4  (a)  Jurisdiction. — The  several  district  courts  of  the 

5  United  States  shall  have  jurisdiction,  for  cause  shown,  to 

6  prevent  and  restrain  violations  of  section  107(a). 

7  (b)  Relief. — 

8  (1)  Removal  op  seal. — Except  as  provided  in 

9  paragraph  (2),  relief  for  violation  of  section  107(a) 

10  shall  be  limited  to  the  removal  of  the  seal  of  the  Na- 

11  tional  Film  Registry  from  the  film  involved  in  the 

12  violation. 

13  (2)   Fine  and   injunctive   relief. — In  the 

14  case  of  a  pattern  or  practice  of  the  willful  violation 

15  of  section  107(a),  the  United  States  district  courts 

16  may  order  a  civil  fine  of  not  more  than  $10,000  and 

17  appropriate  injunctive  relief. 

1 8  sec.  109.  LIMITATIONS  OF  REMEDIES. 

19  The  remedies  provided  in  section  108  shall  be  the  ex- 

20  elusive  remedies  under  this  title,  or  any  other  Federal  or 

21  State  law,  regarding  the  use  of  the  seal  described  in  sec- 

22  tion  103(a)(3). 


•HR  1734  IH 


37 


14 

1  SEC.  110.  STAFF  OF  BOARD;  EXPERTS  AND  CONSULTANTS. 

2  (a)  Staff. — The  Librarian  may  appoint  and  fix  the 

3  pay  of  such  personnel  as  the  Librarian  considers  appro- 

4  priate  to  carry  out  this  title. 

5  (b)  Experts  a.\d  Consultants. — The  Librarian 

6  may,  in  carrying  out  this  title,  procure  temporary  and 

7  intermittent  services  under  section   3109(b)    of  title   5, 

8  United  States  Code,  but  at  rates  for  individuals  not  to 

9  exceed  the  daily  equivalent  of  the  maximum  rate  of  basic 

10  pay  payable  for  GS-15  of  the  General  Schedule.  In  no  case 

1 1  may  a  member  of  the  Board  or  an  alternate  be  paid  as 

12  an  expert  or  consultant  under  this  section. 

13  SEC.  111.  DEFINITIONS. 

1 4  As  used  in  this  title — 

15  (1)  the  term  "Librarian"  means  the  Librarian 

16  of  Congress; 

17  (2)  the  term  "Board"  means  the  National  Film 

18  Preservation  Board; 

19  (3)  the  term  "film"  means  a  "motion  picture" 

20  as  defined  in  section  101  of  title  17,  United  States 

21  Code,  except  that  such  term  does  not  include  any 

22  work  not  originally  fixed  on  film  stock,  such  as  a 

23  work  fixed  on  videotape  or  laser  disk; 

24  (4)  the  term  "publication"  means  "publication" 

25  as  defined  in  section  101  of  title  17  United  States 

26  Code;  and 

•HR  1734  m 


38 

15 

1  (5)  the  term  "Registry  version"  means,  with  re- 

2  spect  to  a  film,  the  version  of  a  film  first  published, 

3  or  as  complete  a  version  as  bona  fide  preservation 

4  and  restoration  activities  by  the  Librarian,  an  archi- 

5  vist  other  than  the  Librarian,  or  the  copyright  owner 

6  can  compile  in  those  cases  where  the  original  mate- 

7  rial  has  been  irretrievably  lost. 

8  SEC.  112.  AUTHORIZATION  OF  APPROPRIATIONS. 

9  There  are  authorized  to  be  appropriated  to  the  Li- 

10  brarian  such  sums  as  may  be  necessary  to  carry  out  the 

1 1  purposes  of  this  title,  but  in  no  fiscal  year  shall  such  sum 

12  exceed  $250,000. 

13  SEC.  113.  EFFECTIVE  DATE. 

14  The  provisions  of  this  title  shall  be  effective  for  10 

15  years  beginning  on  the  date  of  the  enactment  of  this  Act. 

16  The  provisions  of  this  title  shall  apply  to  any  copy  of  any 

17  film,  including  those  copies  of  films  selected  for  inclusion 

18  in  the  National  Film  Registry  under  the  National  Film 

19  Preservation  Act  of  1988  and  the  National  Film  Preserva- 

20  tion  Act  of  1992,  except  that  any  film  so  selected  under 

21  either  Act  shall  be  deemed  to  have  been  selected  for  the 

22  National  Film  Registry  under  this  title. 

23  SEC.  114.  REPEAL. 

24  The   National   Film   Preservation   Act   of   1992    (2 

25  U.S.C.  179  and  following)  is  repealed. 

•HR  1734  IH 


39 

16 

1  TITLE    II— THE    NATIONAL   FILM 

2  PRESERVATION  FOUNDATION 

3  ACT 

4  SEC.  201.  SHORT  TITLE. 

5  This  title  may  be  cited  as  the  "National  Film  Preser- 

6  vation  Foundation  Act". 

7  SEC.  202.  ESTABLISHMENT  AND  PURPOSE  OF  FOUNDATION. 

8  (a)  Establishment. — There  is  established  the  Na- 

9  tional  Film  Preservation  Foundation   (hereafter  in  this 

10  title  referred  to  as  the  "Foundation").  The  Foundation 

11  is  a  charitable  and  nonprofit  corporation  and  is  not  an 

12  agency  or  establishment  of  the  United  States. 

13  (b)   Purposes. — The  purposes   of  the   Foundation 

14  are — 

15  (1)  to  encourage,  accept,  and  administer  private 

16  gifts  to  promote  and  ensure  the  preservation  and 

17  public  accessibility  of  the  nation's  film  heritage  held 

18  at  the  Library  of  Congress  and  other  public  and 

19  non-profit  archives  throughout  the  United  States; 

20  (2)  to  further  the  goals  of  the  Library  of  Con- 

21  gress  and  the  National  Film  Preservation  Board  in 

22  connection  vdth  their  activities  under  the  National 

23  Film  Preservation  Act;  and 

24  (3)  to  undertake  and  conduct  other  activities, 

25  alone  or  in  cooperation  with  other  film  related  insti- 

•HR  1734  IH 


40 

17 

1  tutions  and  organizations,  as  will  further  the  preser- 

2  vation  and  public  accessibility  of  films  made  in  the 

3  United  States,  particularly  those  not  protected  by 

4  private  interests,  for  the  benefit  of  present  and  fu- 

5  ture  generations  of  Americans. 

6  SEC.  203.  BOARD  OF  DIRECTORS  OF  THE  FOUNDATION. 

7  (a)     Establishment     and     Membership. — The 

8  Foundation  shall  have  a  governing  Board  of  Directors 

9  (hereafter  in  this  title  referred  to  as  the  "Board"),  which 

10  shall  consist  of  9  Directors,  each  of  whom  shall  be  a  Unit- 

1 1  ed  States  citizen  and  at  least  6  of  whom  must  be  knowl- 

12  edgeable  or  experienced  in  film  production,  distribution, 

13  preservation  or  restoration,  including  2  who  shall  be  sit- 

14  ting  members  of  the  National  Film  Preservation  Board. 

15  These  6  members  of  the  Board  shall,  to  the  extent  prac- 

16  ticable,  represent  diverse  points  of  views  from  the  film 

17  community,  including  motion  picture  producers,  creative 

18  artists,  nonprofit  and  public  archivists,  historians,  film 

19  critics,  theater  owners,  and  laboratory  and  university  per- 

20  sonnel.  The  Librarian  of  Congress  (hereafter  in  this  title 

21  referred  to  as  the  "Librarian")  shall  be  an  ex  officio  non- 
22  voting  member  of  the  Board.  Appointment  to  the  Board 

23  shall  not  constitute  emplojTnent  by,  or  the  holding  of  an 

24  office  of,  the  United  States  for  the  purpose  of  any  Federal 

25  law. 

•HR  li94  IH' 


41 

18 

1  (b)  Appointment  and  Terms. — ^Within  90  days 

2  after  the  date  of  the  enactment  of  this  Act,  the  Librarian 

3  shall  appoint  the  Directors  of  the  Board.  Each  Director 

4  shall  be  appointed  for  a  term  of  5  years.  A  vacancy  on 

5  the  Board  shall  be  filled,  within  60  days  after  the  vacancy 

6  occurs,  in  the  manner  in  which  the  original  appointment 

7  was  made.  No  individual  may  serve  more  than  2  consecu- 

8  tive  terms  as  a  Director. 

9  (c)  Chair. — The  initial  Chair  shall  be  appointed  by 

10  the  Librarian  from  the  membership  of  the  Board  for  a 

1 1  2 -year  term,  and  thereafter  shall  be  appointed  and  re- 

12  moved  in  accordance  with  the  Foundation's  bylaws. 

13  (d)  Quorum. — ^A  majority  of  the  current  membership 

14  of  the  Board  shall  constitute  a  quorum  for  the  transaction 

15  of  business. 

16  (e)  Meetings. — The  Board  shall  meet  at  the  call  of 

17  the  Librarian  or  the  Chair  at  least  once  a  year.  If  a  Direc- 

18  tor  misses  3   consecutive  regularly  scheduled  meetings, 

19  that  individual  may  be  removed  from  the  Board  by  the 

20  Librarian,  and  that  vacancy  shall  be  filled  in  accordance 

21  with  subsection  (b). 

22  (f)  Reimbursement  of  Expenses. — Members  of 

23  the  Board  shall  serve  without  pay,  but  may  be  reimbursed 

24  for  the  actual  and  necessary  traveling  and  subsistence  ex- 


•HR  1734  m 


42 

19 

1  penses  incurred  by  them  in  the  performance  of  the  duties 

2  of  the  Foundation. 

3  (g)  General  Powers. — 

4  (1)     Organization    op    foundation. — The 

5  Board  may  complete  the  organization  of  the  Foun- 

6  dation  by — 

7  (A)  appointing,  removing,  and  replacing  of- 

8  ficers,    except    as    provided    for    in    paragraph 

9  (2)(B); 

10  (B)    adopting   a   constitution    and   bylaws 

11  consistent  with  the  purpose  of  the  Foundation 

1 2  and  the  provisions  of  this  title;  and 

13  (C)  undertaking  such  other  acts  as  may  be 

14  necessary  to  carry  out  the  provisions  of  this 

15  title. 

16  (2)  Limitation  on  appointment  op  employ- 

17  EES. — The  following  limitations  apply  with  respect 

18  to  the  appointment  of  employees  of  the  Foundation: 

19  (A)  Employees  may  not  be  appointed  until 

20  the    Foundation    has    sufficient    funds    to    pay 

21  them  for  their  services.  Except  as  provided  in 

22  subparagraph  (B),  employees  of  the  Foundation 

23  shall  be  appointed,  removed,  and  replaced  by 

24  the  Secretary  of  the  Board.  All  employees  (in- 

25  eluding  the  Secretary  of  the  Board)  shall  be  ap- 

•HR  1734  IH 


43 

20 

1  pointed  and  removed  without  regard  to  the  pro- 

2  visions  of  title  5,  United  States  Code,  governing 

3  appointments   in   the   competitive   service,   and 

4  may  be  paid  without  regard  to  the  provisions  of 

5  chapter  51  and  subchapter  III  of  chapter  53  of 

6  such  title  relating  to  classification  and  General 

7  Schedule  pay  rates,  except  that  no  individual  so 

8  appointed  may  receive  pay  in  excess  of  the  an- 

9  nual  rate  of  basic  pay  in  effect  for  gr-ade  GS- 

10  15  of  the  General  Schedule.  Neither  the  Board, 

1 1  nor  any  of  the  employees  of  the  Foundation,  in- 

12  eluding  the  Secretary  of  the  Board,   shall  be 

13  construed  to  be  employees  of  the   Library  of 

14  Congress. 

15  (B)  The  first  employee  appointed  shall  be 

16  the  Secretary  of  the  Board.  The  Secretary  shall 

17  be  appointed,  and  may  be  removed  by,  the  Li- 

18  brarian. 

19  (C)  The  Secretary  of  the  Board  shall— 

20  (i)  serve  as  its  executive  director,  and 

21  (ii)  be  knowledgeable  and  experienced 

22  in    matters    relating   to    film    preservation 

23  and   restoration   activities,   financial   man- 

24  agement,  and  fund-raising. 


•HR  1734  m 


44 
21 

1  SEC.  204.  RIGHTS  AND  OBLIGATIONS  OF  THE  FOUNDATION 

2  (a)  General. — The  Foundation — 

3  (1)  shall  have  perpetual  succession; 

4  (2)  may  conduct  business  in  the  several  States, 

5  the  District  of  Columbia,  and  any  commonwealth, 

6  territory,  or  possession  of  the  United  States; 

7  (3)  shall  have  its  principal  offices  in  the  Dis- 

8  trict  of  Columbia;  and 

9  (4)   shall   at  all  times  maintain   a  designated 

10  agent  authorized  to  accept  service  of  process  for  the 

1 1  Foundation. 

12  The  serving  of  notice  to,  or  service  of  process  upon,  the 

13  agent  required  under  paragraph  (4),  or  mailed  to  the  busi- 

14  ness  address  of  such  agent,  shall  be  deemed  as  service 

15  upon  or  notice  to  the  Foundation. 

16  (b)  Seal. — The  Foundation  shall  have  an  official  seal 

17  selected  by  the  Board  which  shall  be  judicially  noticed. 

18  (c)  Powers. — To  carry  out  its  purposes  under  sec- 

19  tion  202,  the  Foundation  shall  have,  in  addition  to  the 

20  powers  otherwise  given  it  under  this  title,  the  usual  powers 

21  of  a  corporation  acting  as  a  trvistee  in  the  District  of  Co- 

22  lumbia,  including  the  power — 

23  (1)  to  accept,  receive,  solicit,  hold,  administer, 

24  and  use  any  gift,  devise,  or  bequest,  either  absolutely 

25  or  in  trust,  of  real  or  personal  property  or  any  in- 

26  ^       come* -therefrom  or  other  interest  therein; 

•HR  1734  IH 


45 

22 

1  (2)  to  acquire  by  purchase  or  exchange  any  real 

2  or  personal  property  or  interest  therein; 

3  (3)  unless  otherwise  required  by  the  instrument 

4  of  transfer,  to  sell,  donate,  lease,  invest,  reinvest,  re- 

5  tain,  or  otherwise  dispose  of  any  property  or  income 

6  therefrom; 

7  (4)  to  borrow  money  and  issue  bonds,  deben- 

8  tures,  or  other  debt  instruments; 

9  (5)  to  sue  and  be  sued,  and  complain  and  de- 

10  fend  itself  in  any  court  of  competent  jurisdiction,  ex- 

11  cept  that  the  Directors  of  the  Board  shall  not  be 

12  personally  liable,  except  for  gross  negligence; 

13  (6)   to  enter  into  contracts  or  other  arrange- 

14  ments  with  public  agencies  and  private  organizations 

15  and  persons  and  to  make  such  pajnnents  as  may  be 

16  necessary  to  carry  out  its  functions;  and 

17  (7)  to  do  any  and  all  acts  necessary  and  proper 

18  to  carry  out  the  purposes  of  the  Foundation. 

19  A  gift,  devise,  or  bequest  may  be  accepted  by  the  Founda- 

20  tion  even  though  it  is  encumbered,  restricted,  or  subject 

21  to  beneficial  interests  of  private  persons,  if  any  current 

22  or  future  interest  therein  is  for  the  benefit  of  the  Founda- 

23  tion. 


•HR  1734  IH 


46 

23 

1  SEC.  205.  ADMINISTRATIVE  SERVICES  AND  SUPPORT. 

2  The  Librarian  may  provide  personnel,  facilities,  and 

3  other  administrative  services  to  the  Foundation,  including 

4  reimbursement  of  expenses  under  section  203,  not  to  ex- 

5  ceed  the  current  per  diem  rates  for  the  Federal  Govern- 

6  ment,  and  may  accept  reimbursement  therefor.  Amounts 

7  so  reimbursed  shall  be  deposited  in  the  Treasury  to  the 

8  credit  of  the  appropriations  then  current  and  chargeable 

9  for  the  cost  of  providing  such  services. 

1 0  SEC.  206.  VOLUNTEER  STATUS. 

1 1  The  Librarian  may  accept,  witliout  regard  to  the  civil 

12  service  classification  laws,  rules,  or  regulations,  the  serv- 

13  ices  of  the  Foundation,  the  Board,  and  other  officers  and 

14  employees  of  the  Board,  without  compensation  from  the 

15  Library  of  Congress,  as  volunteers  in  the  performance  of 

16  the  functions  authorized  in  this  title. 

17  SEC.  207.  AUDITS,  REPORT  REQUIREMENTS,  AND  PETITION 

18  OF  ATTORNEY  GENERAL,  FOR  EQUITABLE 

19  RELIEF. 

20  (a)  Audits. — The  Foundation  shall  be  treated  as  a 

21  private  corporation  established  under  P^ederal  law  for  pur- 

22  poses  of  the  Act  entitled  "An  Act  to  provide  for  audit  of 

23  accounts  of  private  corporations  established  under  Federal 

24  law.",  approved  August  30,  1964  (36  U.S.C.  1101-1103). 

25  (b)  Report. — The  Foundation  shall,  as  soon  as  prac- 

26  tieable  after  the  end  of  each  fiscal  year,  transmit  to  the 

•HR  1734  tH 


47 

24 

1  Congress  a  report  of  its  proceedings  and  activities  during 

2  such  year,  including  a  full  and  complete  statement  of  its 

3  receipts,  expenditures,  and  investments. 

4  (c)  Relief  with  Respect  to  Certain  Founda- 

5  TiON  Acts  or  Failure  to  Act. — If  the  Foundation — 

6  (1)  engages  in,  or  threatens  to  engage  in,  any 

7  act,  practice,  or  policy  that  is  inconsistent  with  its 

8  purposes  set  forth  in  section  202(b),  or 

9  (2)   refuses,  fails,  or  neglects  to  discharge  its 

10  obligations  under  this  title,  or  threatens  to  do  so, 

1 1  the  Attorney  General  of  the  United  States  may  file  a  peti- 

12  tion  in  the  United  States  District  Court  for  the  District 

1 3  of  Columbia  for  such  equitable  relief  as  may  be  necessary 

14  or  appropriate. 

1 5  SEC.  208.  UNITED  STATES  RELEASE  FROM  LIABILITY. 

16  The  United  States  shall  not  be  liable  for  any  debts, 

17  defaults,  acts,  or  omissions  of  the  Foundation,  nor  shall 

18  the  full  faith  and  credit  of  the  United  States  extend  to 

19  any  obligation  of  the  Foundation. 

20  SEC.  209.  AUTHORIZATION  OF  APPROPRIATIONS. 

21  (a)  Authorization. — There  are  authorized  to  be  ap- 

22  propriated   to   the   Library  of  Congress   not   to   exceed 

23  $2,000,000  for  each  of  the  fiscal  years   1996  through 

24  2005,  to  be  made  available  to  the  Foundation  to  match 

25  private  contributions  (whether  in  currency,   services,  or 

•HH  .1734  IH 


48 

25 

1  property)  made  to  the  Foundation  by  private  persons  and 

2  State  and  local  governments. 

3  (b)  Administrative  Expenses. — No  Federal  funds 

4  authorized  under  this  section  may  be  used  by  the  Founda- 

5  tion  for  administrative  expenses  of  the  Foundation,  includ- 

6  ing  for  salaries,  travel,  and  transportation  expenses,  and 

7  other  overhead  expenses. 

O 


•HR  1734  IH 


49 

Mr.  MOORHEAD.  This  morning,  the  ranking  minority  member  of 
the  full  committee,  Mr.  Conyers,  is  on  his  way.  I  left  him  just  a 
few  minutes  ago.  And  he  will  have,  I  am  sure,  an  opening  state- 
ment. But  in  the  meanwhile,  our  good  friend,  Howard  Berman,  who 
represents  a  district  very  much  involved  in  the  film  industry,  just 
to  the  west  of  my  district,  is  here  this  morning  and  I  am  sure  he 
has  an  opening  statement. 

Mr.  Berman.  Well,  it  is  true  I  represent  a  district  which  has  a 
lot  of  people  that  work  in  the  film  industry  and  in  the  entertain- 
ment industry  generally.  And  the  only  thing  I  don't  have  is  an 
opening  statement.  But  I  do  appreciate  the  hearing  on  these  impor- 
tant issues. 

We  have  been  talking  about  a  lot  of  them  for  a  long  time.  And 
it  is  also  very  nice  to  have  a  hearing  so  close  to  home.  And  so  I 
thank  you,  Mr.  Chairman,  for  scheduling  the  hearing.  And  I  will 
be  active  in  the  question  periods,  but  I  don't  have  anjd^hing  particu- 
larly to  add  right  now. 

Mr.  MoORHEAD.  Another  member  that  is  here,  and  actually  the 
first  member  that  arrived  here,  was  Xavier  Becerra,  who  rep- 
resents the  district  just  to  the  south  of  us  here.  He  only  lives  3 
miles  from  this  courthouse. 

Mr.  Becerra.  Mr.  Chairman,  I  am  pleased  that  you  scheduled 
the  hearing  3  miles  from  my  house.  It  is  a  lot  better  than  schedul- 
ing them  2,500  miles  from  my  house.  And  I  will  just  associate  my- 
self with  all  the  remarks  made  by  my  colleague,  Mr.  Berman,  and 
leave  my  opening  statement  as  that. 

Mr.  MoORHEAD.  This  morning,  we  have  a  very  distinguished 
panel  before  us.  Our  first  witness  will  be  Mr.  Jack  Valenti,  who  is 
the  president  of  the  Motion  Picture  Association  of  America.  I  have 
had  the  pleasure  of  working  with  him  on  many  occasions. 

Mr.  Valenti  is  a  graduate  of  the  University  of  Houston  and  Har- 
vard Business  School.  He  cofounded  the  advertising  and  political 
consulting  agency  of  Weekly  &  Valenti.  He  served  as  Special  As- 
sistant to  the  President  in  Lyndon  Johnson's  White  House  and  be- 
came the  third  president  and  CEO  of  the  MPAA  in  1966. 

Since  that  time,  Mr.  Valenti  has  presided  over  many  changes  in 
the  film  industry  and  has  authored  numerous  books  and  essays. 
We  welcome  Mr.  Valenti. 

I  am  going  to  introduce  the  other  three,  and  then  I  will  have  you 
come  on  first. 

Our  second  witness  will  be  Ms.  Marilyn  Bergman,  who  is  the 
president  and  chairman  of  the  American  Society  of  Composers  Au- 
thors and  Publishers,  or  ASCAP. 

Ms.  Bergman  is  a  three-time  Academy  Award  winner,  a  two-time 
Grammy  Award  winner,  and  a  two-time  Emmy  Award  winner;  all 
of  those  awards. 

She  was  introduced  into  the  Song  Writers  Hall  of  Fame  in  1979. 
She  and  her  husband,  Alan  Bergman,  are  one  of  the  most  respected 
song  writing  teams  in  music  today.  Ms.  Bergman  is  a  graduate  of 
New  York's  high  school  of  music  and  art  and  of  New  York  Univer- 
sity. 

In  1985,  she  became  the  first  woman  to  be  elected  to  the  board 
of  directors  of  ASCAP.  Ms.  Bergman  is  a  member  of  the  executive 
committee  of  the  music  branch  of  the  Academy  of  Motion  Pictures 


50 

Arts  and  Sciences  and  the  board  of  directors  of  the  National  Acad- 
emy of  Song  Writers  and  she  has  recently  been  appointed  to  the 
U.S.  Department  of  Commerce's  Private  Sector  Advisory  Council  of 
the  National  Information  infrastructure.  Welcome,  Ms.  Bergman. 

Our  third  witness  is  Mr.  Edward  Richmond.  He  is  currently  the 
curator  of  the  UCLA  Film  and  Television  Archives.  He  is  a  grad- 
uate of  the  University  of  Cincinnati  and  holds  a  master's  in  film 
and  television  studies  from  Ohio  State  University. 

Mr.  Richmond  worked  his  way  up  from  laboratory  assistant  at 
the  archives  to  administrative  assistant,  assistant  director,  acting 
director  and  finally  curator.  He  is  the  president  of  the  Association 
of  Movie  Image  Archivists  and  a  member  of  the  Archivist  Advisory 
Council  for  the  Film  Foundation.  He  also  lectures  and  has  written 
several  papers  on  film  preservation.  Welcome,  Mr.  Richmond. 

Our  fourth  witness  is  Mr.  Edward  Murphy.  Mr.  Murphy  is  the 
president  and  CEO  of  National  Music  Publishers'  Association 
[NMPA]. 

Prior  to  assuming  his  duties  at  NMPA,  Mr.  Murphy  served  as 
President  of  the  G.  Shirmer,  Inc.,  a  large  American  music  publish- 
ing house.  He  serves  on  the  advisory  board  of  the  International  In- 
tellectual Property  Alliance  and  is  a  member  of  the  International 
Copyright  Panel  of  the  U.S.  Advisory  Committee  on  International 
Intellectual  Property. 

He  founded  the  International  Cop3a'ight  Coalition  and  is  sec- 
retary of  the  National  Music  Council.  Welcome,  Mr.  Murphy. 

We  have  written  statements  from  our  four  witnesses,  which  I  ask 
unanimous  consent  to  be  made  a  part  of  the  record.  And  I  ask  that 
you  all  summarize  your  statements  in  10  minutes  or  less. 

I  ask  that  the  subcommittee  hold  their  questions  of  all  four  wit- 
nesses until  they  have  completed  their  oral  presentations. 

We  will  begin  with  the  testimony  of  Mr.  Valenti. 

STATEMENT  OF  JACK  VALENTI,  PRESIDENT  AND  CEO, 
MOTION  PICTURE  ASSOCIATION  OF  AMERICA 

Mr.  Valenti.  Thank  you,  Mr.  Chairman.  I  think  copyright  term 
extension  has  a  very  simple,  but  compelling  enticement  and  that  is 
it  is  very  much  in  the  economic  interests  of  the  United  States  at 
a  time  when  the  words,  "surplus  balance  of  trade,"  is  seldom  heard 
in  the  corridors  of  Congress,  when  we  are  bleeding  from  trade  defi- 
cits, and  at  a  time  when  our  ability  to  compete  in  the  international 
marketplace  is  under  assault. 

Anything  that  can  be  done  must  be  done,  then,  to  amplify  the 
ability  of  American  movies  and  television  programs  to  keep  alive 
their  marketing  dexterity  in  other  countries  around  the  world. 

Europe  is  already  girding  its  economic  loins.  They  have  length- 
ened their  copyright  term  to  70  years  plus  life  of  the  author.  The 
Europeans  understand  all  too  clearly  what  the  marketplace  is  all 
about.  And  I  think  in  that  kind  of  audiovisual  landscape,  the  Unit- 
ed States  has  to  match  Europe. 

It  can  do  so  by  extending  the  U.S.  copyright  term,  which  will  put 
our  term  span  on  the  same  level  as  the  Europeans.  Europeans  have 
life  of  the  author  plus  70  years.  That  means  that  we  would  have 
under  works  for  hire,  95  years  as  the  term  extension. 


51 

I  want  to  give  you  four  major  reasons  which  command  our  atten- 
tion and  which  certify,  I  think,  the  need  for  copyright  term  exten- 
sion. 

One,  the  Berne  Convention  has  a  minimum  protection  time  span. 
And  that  is  Ufe  of  the  author  plus  50  years.  But,  under  Berne,  any 
nation  can  add  additional  terms  if  they  choose.  But — and  this  is 
the  pivotal  point  that  we  have  to  understand — other  Berne  coun- 
tries are  obligated  only  to  protect  the  minimum  length  that  Berne 
certifies,  the  life  of  the  author  plus  50.  They  are  not  required  nor 
would  they  guard  any  other  country's  works  beyond  what  that 
country  puts  down  as  its  yardstick  for  term  extension,  which 
means  that  when  we  go  to  Europe  with  50  years — 70  years,  that 
is  life  of  the  author  plus  50,  or  70  years  for  works  for  hire,  we 
would  be  at  a  grave  disadvantage,  that  our  movies  would  be  in  the 
public  domain,  whereas  the  European  movies  would  be  fully  pro- 
tected. That  is  one  reason. 

Two,  the  minute  that  American  works  go  into  public  domain,  in 
Europe,  our  revenues  that  are  brought  back  to  this  country  as  part 
of  our  surplus  balance  of  trade,  which  we  provision  in  this  country, 
those  revenues  would  be  cut  off  and  they  would  pass  into  other 
hands,  not  U.S.  producers. 

Three,  American  creative  works  are  the  most  popular,  the  most 
patronized,  the  most  sought  after,  not  only  in  Europe,  but  all  over 
the  world,  which  is  why,  and  here  I  have  said  this  over  and  over 
again,  and  maybe  about  the  28th  time  somebody  will  recall  what 
I  have  said — and  that  is  that  the  American  movie,  television  pro- 

fram  and  home  video  return  to  this  country  annually  more  than 
4  billion  a  year  in  surplus  balance  of  trade. 

If  you  take  all  of  the  products  in  this  country,  made  or  grown, 
manufactured,  or  those  that  leap  from  the  brain  pan  of  people  like 
Marilyn  Bergman  and  others,  everything  can  be  matched,  cloned, 
or  duplicated  by  any  other  country  in  the  world.  Argentine  wheat 
and  Korean  steel  and  Grerman  automobiles  and  Japanese  elec- 
tronics. 

But  the  one  product  which  at  this  hour  has  never  been  dupli- 
cated or  matched  by  any  other  country  in  the  world  is  the  Amer- 
ican movie.  It  is  a  trade  prize  beyond  all  imagination. 

The  case  for  copyright  term  extension,  Mr.  Chairman,  I  believe 
is  that  simple.  And  I  am  so  pleased  that  10  of  the  members  of  your 
subcommittee  have  already  cosponsored  and  I  hope  that  Ms. 
Wheeler  will  pass  along  to  Congressman  Conyers  all  of  these  melo- 
dious and  triumphant  phrases  which  I  am  uttering  this  morning 
because  he  has  not  yet  signed  on  as  a  cosponsor,  and  I  need  to  per- 
suade him. 

What  are  the  contrary  views?  If  someone  comes  to  me  and  tries 
to  persuade  me,  I  want  to  know  what  the  upside  and  the  downsides 
are.  Some  academics  plead  that  the  consumer  is  going  to  be  bene- 
fited if  there  are  more  public  domain  works  because  public  domain 
works  would  be  cheaper,  more  readily  available,  and  therefore  be 
consumer  benefits. 

What  academics  do  not  know  or  do  not  observe  is  that  while  an 
American  public  domain  work  may  be  sold  more  cheaply  to  some- 
one, in  many  exhibitors  in  many  international  markets,  consumers 
are  not  granted  cheaper  prices,  either  here  or  abroad.  Not  at  all. 


52 

Why?  The  theater  ticket  price  remains  the  same,  no  matter  what 
picture  is  showing.  I  do  not  know  of  any  home  video  store  that 
gives  you  a  discount  nor  do  I  know  of  any  television  station  that 
lowers  its  advertising  rates  because  it  happened  to  buy  a  program 
more  cheaply  than  did  its  competitors.  That  is  a  fact  of  life. 

The  academics  also  assert  that  when  copyrighted  works  lose 
their  protection,  they  become  more  widely  available  to  the  public. 
Again,  what  the  academics  do  not  know  are  the  marketplace  real- 
isms which  exist.  Whatever  work  is  not  protected  is  a  work  that 
nobody  preserves.  The  quality  of  the  print  is  soon  degraded.  And 
there  is  no  one  around  who  is  going  to  invest  the  money  for  en- 
hancement. Why?  Because  there  is  no  longer  a  financial  incentive 
to  rehabilitate  and  preserve  because  it  belongs  to  everybody  and 
therefore  it  belongs  to  nobody. 

A  public  domain  work  is  an  orphan.  No  question  about  that.  No 
one  is  responsible  for  its  future  life.  But  everyone  exploits  its  use 
until  that  time  certain  when  it  becomes  soiled  and  haggard  and 
barren  of  all  of  its  former  virtues.  Who  then — who  then  will  invest 
the  funds  required  to  renovate  it  and  to  nourish  its  future  when 
nobody  owns  it? 

How  does  the  consumer  benefit  from  that  scenario?  The  answer 
is  the  consumer  has  no  benefit.  What  the  academics  offer  in  numb- 
ing detail  are  the  arcane  drudgeries  of  graphs  and  charts  and  ar- 
ithmetical lines  that  cross  a  page.  But  the  fact  is  that  all  of  these 
scholarly  works  are  separated  from  the  real  world  in  which  realism 
exists. 

And  that  brings  me  now  to  the  fourth  reason  why  it  is  necessary 
to  extend  copyright  terms.  That  Congress  can,  without  reaching 
into  the  pockets  of  any  consumer,  magnify  the  revenue  curve  of 
copyright  owners,  which  can  be  delivered  back  to  this  country  and 
thereby  help,  maybe  modestly,  but  nonetheless  help  in  the  reduc- 
tion of  our  trade  deficit,  as  well  as  encouraging  the  preservation 
and  nourishment  of  what  I  think  is  one  of  America's  great,  glitter- 
ing trade  prizes,  the  American  movie. 

In  the  global  intellectual  property  world  of  tomorrow,  I  think 
competition  is  going  to  reach  a  ferocity  unimagined  today.  And  you 
have  to  understand  what  intellectual  property  means  to  this  coun- 
try. The  core  copyright  industries  represent  intellectual  property, 
movies,  home  video,  books,  musical  recordings  and  computer  soft- 
ware. 

Together  they  comprise  about  4  percent  of  our  gross  domestic 
product.  About  $240  billion.  They  collect  some  $45  billion  in  reve- 
nues abroad.  Their  employment  rate  is  growing  four  times  faster 
than  the  national  economy. 

If  ever  there  was  a  prize  that  ought  to  be  protected  by  the  Con- 
gress of  the  United  States  and  by  this  administration,  it  is  this 
wonderful  world  of  intellectual  property  in  which  we  are  superior 
and  dominant  throughout  the  world. 

So  I  say  the  Congress  ought  to  equip  us  with  the  kind  of  intellec- 
tual property  protection  we  need  by  extending  this  copyright  term. 
Otherwise,  competition  in  Europe  particularly  is  going  to  get 
skewed  against  us. 

Which  brings  me  now  to  the  singular  premise  on  which  this,  I 
hope,  passionate  plea  is  based  and  that  is  what  we  are  asking  you 


53 

to  do  is  very  much  and  confirmably  so  in  the  long-range  economic 
interest  of  the  United  States. 

And  now,  since  Congressman  Conyers  has  arrived,  may  I  do  this 
all  over  again,  please? 

[The  prepared  statement  of  Mr.  Valenti  follows:] 

Prepared  Statement  of  Jack  Valenti,  President  and  CEO,  Motion  Picture 
Association  of  America 

Copyright  term  extension  has  a  simple  but  compelling 
enticem.ent:  it  is  very  much  in  America's  economic  interests. 

At  a  time  when  our  marketplace  is  besieged  by  cin 
avalanche  of  imports,  at  a  hme  when  the  phrase  'surplus  balance 
of  trade'  is  seldom  heard  in  the  corridors  of  Congress,  at  a  time 
when  our  ability  to  compete  in  international  markets  is  under 
assault,  whatever  can  be  done  ought  to  be  done  to  amplify 
America's  export  dexterity  in  tlie  global  arena  . 

Europe  is  girding  its  economic  loins.  One  small  piece  of 
that  call  to  arms  is  that  the  European  Union  has  lengthened 
copyright  term  to  70  years  plus  life  of  the  author.  Europe's 
planners  understand  all  too  clearly  how  the  market  works.  In 
that  kind  of  audiovisual  locale,  the  U.S.  has  to  match  Europe.  It 
can  do  so  by  extending  U.S.  copyright  term  to  put  our  term,  span 
at  the  same  level  as  Europe's  -  70  years  PLUS  life  of  the  author  or 
95  years  for  works  made  for  hire. 

There  are  Four  major  reasons  which  command  our 
attention  and  certify  tlie  need  for  copyright  term  extension: 

First,  while  the  Berne  Convention  hcis  a  minimum  term 
(life  of  the  author  plus  fifty)  any  nation  can  provide  longer  terms. 
But,  and  this  is  pivotal,  a  nation  does  not  have  to  prptect  other 
countries'  works  beyond  what  those  countries  provide  for  their 
works.  To  put  it  plainly,  Europe  would  not  guard  American 
works  beyond  the  American  term  limit,  whereas  Eiuropean  works 
would  have  longer  security  cmd  energy  in  the  marketplace. 

Second,  this  mecins  that  American  works  would  go  into 
public  domain  in  Europe,  thereby  cutting  off  revenues  for 
American  copyright  owners,  and  transferring  those  revenues  into 
European  hands,  and  elsewhere. 


54 

2  of  3 


Third,  American  creative  works  are  the  most  globally 
popular,  the  most  patronized,  and  the  most  sought  after  by 
exhibitors  in  theaters,  television  and  home  video  all  over  the 
world.  Which  is  why  U.S.  movies /TV  programs  and  home  video 
are  America's  most  wanted  exports,  delivering  back  to  our 
country  more  them  $4  Billion  in  SURPLUS  balance  of  trade. 
Intellectual  property,  consisting  of  the  core  copyright  industries, 
movies,  TV  programs,  home  video,  books,  musical  recordings  and 
computer  software  comprise  almost  4%  of  the  nation's  Gross 
Domestic  Product,  gather  in  some  $45  Billion  in  revenues  abroad, 
and  has  grown  its  employment  at  a  rate  four  times  faster  than  the 
annual  rate  of  growth  of  the  overall  U.S.  economy.  Whatever 
shrinks  that  massive  asset  is  NOT  in  America's  best  interests. 

The  case  for  copyright  term  extension  is  tliat  simple. 

What  are  the  contrary  views? 

Some  academics  plead  that  the  consumer  would  be 
benefited  because  more  public  domain  works  would  find  wider 
circulation  at  cheaper  prices.  What  academics  do  not  observe  or 
do  not  know  is  that  while  an  American  public  domain  work  may 
be  SOLD  cheaper  to  exhibitors  in  many  international  markets, 
consumers  <ire  NOT  grcmted  cheaper  prices.  Npt  at  all.  The 
theater  ticket  remains  the  same  price.  TV  station,  home  video 
stores  give  no  discounts  to  the  public.  Advertising  rates  do  not 
come  down. 

Academics  also  assert  that  when  copyrighted  works  lose 
their  protection,  they  become  more  widely  available  to  the  public. 
Again  what  academics  do  not  observe  or  do  not  know  is  a  simple 
marketplace  truth:  Whatever  work  is  not  protected  is  a  work  that 


55 

3  of  3 


no  one  preserves.  The  quality  of  the  print  is  soon  degraded. 
There  is  no  one  who  will  invest  the  funds  for  enhancement 
because  there  is  no  longer  an  incentive  to  rehabilitate  and 
preserve.  A  public  domain  work  is  an  orphan.  No  one  is 
responsible  for  its  life.  But  everyone  exploits  its  use,  until  that 
time  certain  when  it  becomes  soiled  and  haggard,  barren  of  its 
previous  virtues.  Who,  tlien,  will  invest  the  funds  to  renovate 
and  nourish  its  future  life  when  no  one  owns  it?  How  does  the 
consumer  benefit  from  that  scenario?  The  answer  is,  there  is  no 
benefit.  What  academics  offer  in  numbing  detail  are  the  arcane 
drudgeries  of  graphs,  charts,  and  aritlimetical  lines  drawn  across 
a  page,  all  of  which  dwell  in  isolation,  separated  from  the 
realisms  of  the  marketplace. 

And  that  brings  us  to  the  Fourth  reason  why  it  is 
necessary  to  extend  copyright  term  limits. 

The  Congress  can,  without  reaching  into  the  pockets  of 
the  average  consumer,  magnify  the  revenue  reach  of  copyright 
owners,  and  thereby  help,  perhaps  modestly,  but  help 
nonetheless,  in  the  reduction  of  our  trade  deficit,  as  well  as 
encouraging  the  preservation  and  nourishment  of  this  nation's 
great,  unmatchable  trade  prize,  the  American  movie.  In  the 
global  intellectual  property  world  of  tomorrow,  competition  will 
reach  a  ferocity  unimagined  today.  The  Congress  must  equip 
American  owners  of  intellectual  property  with  a  full  measure  of 
protection,  else  competition,  in  Europe  peirticularly,  becomes 
skewed  and  U.S.  copyright  owners  are  reduced  in  their 
effectiveness. 

Which  returns  us  to  the  singular  premise  on  which  this 
plea  is  based:  ft  is  in  the  economic  best  interests  of  this  country  to 
extend  copyright  term  limits.  Now. 


56 

Mr.  CONYERS.  I  may  have  heard  it  before. 

Mr.  MOORHEAD.  He  wants  you  as  a  cosponsor  on  the  bill. 

Mr.  Valenti.  I  said,  Mr.  Chairman,  if  I  may,  Mr.  Chairman,  1 
more  minute.  I  said  that  I  wanted  you  here,  Congressman  Conyers, 
because  you  are  one  of  the  three  or  four  members  of  this  sub- 
committee who  hasn't  cosponsored  this  copyright  term  extension 
and  I  felt  like  you  would  be  susceptible  to  some  of  my  passionate 
pleas. 

Mr.  Conyers.  I  always  have  been. 

Mr.  Valenti.  Anyway,  thank  you,  Mr.  Chairman.  I  am  grateful 
for  the  time. 

Mr.  MooRHEAD.  Thank  you. 

Our  next  witness  is  Marilyn  Bergman  and  many  of  you  have 
heard,  "The  Way  We  Were,"  and  many  of  the  other  wonderful,  won- 
derful songs  that  she  has  written.  We  are  very  fortunate  to  have 
you  here  today. 

STATEMENT  OF  MARILYN  BERGMAN,  SONGWRITER,  PRESI- 
DENT AND  CHAIRMAN  OF  THE  BOARD,  AMERICAN  SOCIETY 
OF  COMPOSERS,  AUTHORS  AND  PUBLISHERS 

Ms.  Bergman.  Thank  you.  Grood  morning,  again,  Mr.  Chairman. 
And  thank  you  for  holding  these  hearings  about  12  miles  from  my 
home.  You  beat  me  by  8  miles. 

Mr.  Becerra.  Close  enough. 

Ms.  Bergman.  Good  morning,  Mr.  Chairman,  and  members  of 
the  subcommittee,  my  name  is  Marilyn  Bergman.  I  am  a  song  writ- 
er. I  am  also  president  and  chairman  of  the  board  of  ASCAP.  I  very 
much  appreciate  the  opportunity  to  express  our  strong  support  for 
H.R.  989,  the  Copyright  Term  Extension  Act  of  1995. 

At  the  risk  of  repeating  some  of  the  eloquent  words  of  our  chair- 
man, and  certainly  the  passionate  words  of  Mr.  Valenti,  for  the 
record  I  have  to  make  my  statement. 

I  wish  to  start,  Mr.  Chairman,  by  applauding  your  recognition  of 
the  importance  of  extending  our  copyright  term.  You  have  been  a 
leader  on  this  important  question,  as  on  so  many  others  vital  to 
American  creators  and  owners  of  cop)n-ight.  We  wish  to  express  our 
deepest  thanks  for  your  support  and  for  that  of  the  many  cospon- 
sors  of  this  legislation  from  the  subcommittee.  Representatives 
Becerra,  Berman,  Bono,  Coble,  Gallegly,  Gekas,  Goodlatte,  Nadler, 
and  Schroeder. 

As  you  know,  ASCAP  exists  to  license  the  nondramatic  public 
performances  of  copyrighted  music  written  and  owned  by  our  more 
than  65,000  composer,  lyricist,  and  music  publisher  members.  We 
license  music  users  and  monitor,  collect,  and  distribute  royalties  to 
our  members.  These  royalties  are  the  largest  single  source  of  in- 
come to  song  writers  and  that  is  what  enables  us  to  work  in  our 
chosen  field  and  create  the  music  that  enriches  the  culture  and  the 
economy  of  our  country. 

ASCAP,  together  with  our  sister  societies  BMI  and  SESAC,  are 
among  the  many  interested  parties  which  have  joined  together  to 
form  the  coalition  of  creators  and  copyright  owners  to  support  your 
bill.  The  coalition  will  submit  a  written  statement. 


57 

My  testimony  today  will  focus  on  why  this  legislation  is  vital  for 
America's  music,  and  I  will  do  so  from  my  personal  perspective  as 
both  ASCAP's  chairman  and  as  a  working  lyricist. 

H.R.  989  proposes  to  extend  the  terms  of  all  copyrights  in  the 
United  States  by  20  years.  There  are  two  overriding  reasons  why 
that  is  an  important  idea.  The  first  is  economic.  Term  extension  is 
necessary  as  a  matter  of  international  trade.  It  is  necessary  if  our 
intellectual  property,  which  does  so  much  for  the  American  econ- 
omy, is  to  be  protected  internationally. 

The  second  is  that  it  is  the  right  thing  to  do.  The  United  States 
should  do  all  it  can  to  encourage  creativity  and  to  protect  intellec- 
tual property.  Extension  of  copyright  term  will  serve  to  encourage 
the  tens  of  thousands  of  music  creators  who  struggle  to  earn  a  liv- 
ing in  this  highly  competitive  business,  and  for  whom  the  prospect 
of  leaving  an  asset  of  their  own  making  to  their  children  and 
grandchildren  is  a  powerful  incentive. 

Copyright  of  all  forms  of  property  transcends  both  national  and 
international  boundaries.  In  recent  years,  we  have  seen  a  true 
internationalization  of  the  demand  for  and  use  of  copyrighted 
works.  Music,  among  a  wealth  of  other  copyrighted  works,  flows 
freely  among  and  between  nations. 

The  technological  developments  which  have  resulted  in  the  infor- 
mation superhighway,  the  national  and  global  information  infra- 
structures, will  result  in  even  greater  ease  of  access  to  and  com- 
merce in  copyrights  and  copyrighted  music  on  a  worldwide  basis. 

The  creativity  the  world  wants,  as  Mr.  Valenti  so  passionately 
put  it,  is  overwhelmingly  the  creativity  of  our  country.  America's 
music  is  what  the  world  wants  to  hear  and  our  music  is  far  more 
popular  overseas  than  foreign  music  is  here.  That  means  that  we 
have  a  very  positive  balance  of  trade  in  music,  as  in  all  other  copy- 
righted works. 

Last  year,  ASCAP  sent  $27  million  overseas  for  performance  of 
foreign  music  here,  but  we  received  $103  million  for  the  perform- 
ance of  our  music  abroad.  If  we  were  to  count  the  amounts  received 
by  foreign  subsidiaries  of  American  music  publishers  for  foreign 
performances  the  amount  would  be  much  greater. 

As  you  know,  the  European  Union  has  adopted  a  directive  to  go 
into  effect  1  month  from  today,  which  will  make  the  copyright  term 
throughout  the  E.U.  20  years  longer  than  it  is  in  the  United  States. 
But  because  of  the  rule  of  the  shorter  term,  those  European  coun- 
tries will  not  protect  American  works  for  additional  20  years  unless 
our  copjTight  term  is  also  lengthened  by  20  years. 

I  and  my  American  colleagues  will  have  less  protection  than  our 
European  counterparts.  And  what  is  worse,  we  will  lose,  our  coun- 
try will  lose,  the  20  years  of  royalties  which  we  would  otherwise 
earn  if  our  country's  copyright  term  was  equal  to  that  of  the  E.U.'s. 

ASCAP  has  calculated  that  the  loss  of  ASCAP  performing  rights 
revenues  earned  in  Europe  alone  by  American  writers  and  music 
publishers  for  the  oldest  20  years  of  copyrighted  music  would 
amount  to  about  $14  million  annually. 

When  we  consider  that  performing  rights  are  half  the  total  in- 
come writers  and  publishers  receive,  we  could  estimate  that  in 
music  alone  term  extension  would  mean  a  trade  surplus  of  about 


58 

$25  million  annually;  money  which  would  go  directly  to  American 
creators,  businesses,  and  the  American  economy's  benefit. 

The  loss  of  these  revenues  would  not  be  fair  to  those  of  us  who 
work  so  hard  to  create  America's  music,  to  those  who  invest  consid- 
erable sums  to  bring  that  music  to  the  public,  and  to  our  fellow  citi- 
zens who  rely  on  a  strong  U.S.  economy. 

Mr.  Chairman,  if  nothing  else,  it  comes  down  to  this:  We  can  ob- 
tain 20  years  of  continued  trade  surplus  for  American  creativity  in 
the  European  market  at  no  cost  to  ourselves  simply  by  enacting 
your  legislation.  If  we  do  not  do  so  and  do  not  do  so  now,  over  the 
next  2  years,  the  following  great  American  songs  and  many  others 
will  fall  into  the  public  domain.  The  revenues  they  and  other  copy- 
righted works  would  generate  in  Europe  for  another  20  years, 
which  would  serve  the  economic  good  of  our  country,  will  simply 
vanish.  Let  me  mention  a  few. 

Appropriately,  "California,  Here  I  Come,"  "Toot  Toot  Tootsie 
Good-Bye,"  "Rhapsody  in  Blue,"  "Tea  for  Two,"  "It  Had  To  Be  You," 
"The  Man  I  Love,"  "I  Will  See  You  in  My  Dreams,"  "Lady  be  Good," 
"Ain't  We  Got  Fun,"  "All  By  Myself,"  "April  Showers,"  "Avalon," 
"I'll  Be  With  You  in  Apple  Blossom  Time,"  "I'm  Just  Wild  About 
Harry,"  "Look  For  The  Silver  Lining,"  "Make  Believe,"  "Say  It  With 
Music,"  and  "Secondhand  Rose,"  only  to  mention  a  few. 

Logic  and  our  country's  economic  self-interest  dictate  that  we  ex- 
tend our  copyright  term  to  take  advantage  of  this  opportunity  for 
extended  protection  in  the  European  market.  We  can  do  so  by  en- 
acting H.R.  989.  Mr.  Chairman,  thank  you  for  introducing  this  vital 
legislation  and  for  this  opportunity  to  voice  our  strong  support  for 
it. 

[The  prepared  statement  of  Ms.  Bergman  follows:] 


59 

Prepared  Statement  of  Marilyn  Bergman,  Songwriter,  President  and 
Chairman  of  the  Board,  American  Society  of  Composers,  Authors  and 
Publishers 

Good  morning,  Chairman  Moorhead  and  members  of  the 
Subcommittee.   My  name  is  Marilyn  Bergman.   I  am  a  songwriter.   I 
am  also  President  and  Chairman  of  the  Board  of  ASCAP.   I  very 
much  appreciate  the  opportunity  to  express  our  strong  support  for 
H.R.  989,  the  Copyright  Term  Extension  Act  of  1995. 

I  wish  to  start,  Mr.  Chairman,  by  applauding  your 
recognition  of  the  importance  of  extending  our  copyright  term. 
You  have  been  a  leader  on  this  important  question,  as  on  so  many 
others  vital  to  American  creators  and  owners  of  copyright.   We 
wish  to  express  our  deepest  thanks  for  your  support,  and  for  that 
of  the  many  co-sponsors  of  this  legislation  from  the 
Subcommittee,  Representatives  Becerra,  Berman,  Bono,  Coble, 
Gallegly,  Gekas,  Goodlatte,  Nadler,  and  Schroeder. 

As  you  know,  ASCAP  exists  to  license  the  nondramatic 
public  performances  of  copyrighted  music  written  and  owned  by  our 
more  than  65,000  composer,  lyricist  and  music  publisher  members. 
We  license  music  users,  and  monitor,  collect  and  distribute 
royalties  to  our  members.   These  royalties  are  the  largest  single 
source  of  income  to  songwriters,  and  that  is  what  enables  us  to 
work  in  our  chosen  field  and  create  the  music  that  so  enriches 
the  culture,  and  the  economy,  of  our  country. 

ASCAP,  together  with  our  sister  societies  BMI  and 


60 


SESAC,  are  among  the  many  interested  parties  which  have  joined 
together  to  form  the  Coalition  of  Creators  and  Copyright  Owners, 
to  support  your  bill.   The  Coalition  has  submitted  a  written 
statement.   My  testimony  today  will  focus  on  why  this  legislation 
is  vital  for  America's  music,  and  I  will  do  from  my  personal 
perspective  as  both  ASCAP's  head  and  as  a  working  lyricist. 

H.R.  989  proposes  to  extend  the  terms  of  all  copyrights 
in  the  United  States  by  20  years.   There  are  two  overriding 
reasons  why  that  is  a  good  idea.   The  first  is  economic  --  term 
extension  is  necessary  as  a  matter  of  international  trade.   It  is 
necessary  if  our  intellectual  property,  which  does  so  much  for 
the  American  economy,  is  to  be  protected  internationally.   The 
second  is  that  it  is  the  right  thing  to  do,  for  the  United  States 
should  do  all  it  can  to  encourage  creativity.   Extension  of 
copyright  term  will  serve  to  encourage  the  tens  of  thousands  of 
music  creators  who  struggle  to  earn  a  living  in  this  highly 
competitive  business,  and  for  whom  the  prospect  of  leaving  an 
asset  of  their  own  making  to  their  children  and  grandchildren  is 
a  powerful  incentive. 

Copyright,  of  all  forms  of  property,  transcends  both 
national  and  international  boundaries.   In  recent  years,  we  have 
seen  a  true  internationalization  of  the  demand  for  and  use  of 
copyrighted  works.   Music,  among  a  wealth  of  other  copyrighted 
works,  flows  freely  among  and  between  nations.   The  technological 
developments  which  have  resulted  in  the  information  superhighway 
—  the  National  and  Global  Information  Infrastructures  --  will 


61 


result  in  even  greater  ease  of  access  to,  and  commerce  in, 
copyrights,  and  copyrighted  music,  on  a  world-wide  basis. 

And  the  creativity  the  world  wants  is  overwhelmingly 
the  creativity  of  our  country.   United  States  culture  sets  the 
standard  for  the  world.   America's  music  is  what  the  world  wants 
to  hear,  and  our  music  is  far  more  popular  overseas  than  foreign 
music  is  here.   That  means  that  we  have  a  very  positive  balance 
of  trade  in  music,  as  in  all  copyrighted  works.   Last  year,  ASCAP 
alone  sent  $27  million  overseas  for  performance  of  foreign  music 
here,  but  we  received  $103  million  for  the  performance  of  our 
music  abroad.   If  we  were  to  count  the  amounts  received  by 
foreign  subpublishers  --  foreign  subsidiaries  of  American  music 
publishers  —  for  foreign  performances,  the  amount  would  be  much 
greater.   That  is  money  that  went  straight  into  the  pockets  of 
American  writers  and  publishers,  supporting  American  workers  and 
American  businesses. 

As  you  know,  the  European  Union  has  adopted  a 
Directive,  to  go  into  effect  one  month  from  today,  which  will 
make  the  copyright  term  throughout  the  EU  20  years  longer  than  it 
is  in  the  United  States.   But  because  of  the  "rule  of  the  shorter 
term,"  those  European  countries  will  not  protect  American  works 
for  those  additional  20  years  unless  our  copyright  term  is  also 
lengthened  by  20  years.   I  and  my  American  colleagues  will  have 
less  protection  than  our  European  counterparts.   What's  worse,  we 
will  lose  —  our  country  will  lose  —  the  20  years  of  royalties 
which  we  would  otherwise  earn  if  our  country's  copyright  term  was 


9:i.0R7     QR  _  !i 


62 


equal  to  that  of  the  EU's.   ASCAP  has  calculated  that  the  loss  of 
ASCAP  performing  rights  revenues  earned  in  Europe  alone  by 
American  writers  and  music  publishers  for  the  oldest  20  years  of 
copyrighted  music  —  the  revenues  that  would  be  lost  to  our 
country  —  would  amount  to  about  $14  million  annually. 

The  loss  of  these  foreign  revenues  would  not  be  fair  to 
these  of  us  who  work  so  hard  to  create  America's  music,  to  those 
who  invest  considerable  sums  to  bring  that  music  to  the  public, 
or  to  our  fellow  citizens  who  rely  on  a  strong  United  States 
economy.   Our  country  needs  every  penny  of  trade  surplus  we  can 
get,  and  enactment  of  H.R.  989  will  ensure  that  we  do  not  lose  a 
significant  portion  of  the  trade  surplus  in  copyrights  which  we 
receive  from  Europe. 

Mr.  Chairman,  if  nothing  else,  it  comes  down  to  this: 

we  can  obtain  20  years  of  continued  trade  surplus  for  American 

creativity  in  the  European  market  at  no  cost  to  ourselves,  simply 

by  enacting  your  legislation.   If  we  do  not  do  so,  and  do  not  do 

so  now,  over  the  next  two  years  the  following  great  American 

songs,  and  many  others,  will  fall  into  the  public  domain;  the 

revenues  they  and  other  copyrighted  works  would  generate  in 

Europe  for  another  2  0  years,  which  would  serve  the  economic  good 

of  our  country,  will  simply  vanish: 

AIN'T  WE  GOT  FUN 

ALL  BY  MYSELF 

APRIL  SHOWERS 

AVALON 

I'LL  BE  WITH  YOU  IN  APPLE  BLOSSOM  TIME 

I'M  JUST  WILD  ABOUT  HARRY 

LOOK  FOR  THE  SILVER  LINING 

MAKE  BELIEVE 

-  4  - 


63 


SAY  IT  WITH  MUSIC 
SECOND  HAND  ROSE 

Logic,  and  our  country's  economic  self-interest,  dictate  that  we 

extend  our  copyright  term  to  take  advantage  of  this  opportunity 

for  extended  protection  in  the  European  market.   Let's  do  so  by 

enacting  H.R.  989. 

Mr.  Chairman,  thank  you  for  introducing  this  vital 

legislation,  and  for  this  opportunity  to  voice  our  strong  support 

for  H.R.  989. 


64 

Mr.  MOORHEAD.  Thank  you.  The  next  witness  is  Mr.  Richmond. 

STATEMENT  OF  EDWARD  RICHMOND,  PRESffiENT, 
ASSOCIATION  OF  MOVING  IMAGE  ARCHIVISTS 

Mr.  Richmond.  Thank  you,  Chairman  Moorhead  and  members  of 
the  subcommittee.  I  am  going  to  change  the  pace  and  talk  about 
H.R.  1734,  the  National  Film  Preservation  Act  of  1995.  And  I  want 
to  thank  you  for  giving  me  this  opportunity  to  speak  in  support  of 
it. 

I  am  here  today  representing  the  Association  of  Moving  Image 
Archivists.  AMIA  is  a  professional  association  established  in  1991 
to  provide  a  means  for  cooperation  among  individuals  concerned 
with  preservation  and  use  of  moving  image  materials.  It  currently 
represents  nearly  250  professional  archivists  working  at  more  than 
100  institutions  in  both  the  public  and  private  sectors. 

In  commenting  today,  I  will  confine  my  remarks  to  title  II  of  the 
proposed  legislation,  which  seeks  to  establish  a  federally  chartered 
foundation  dedicated  to  the  preservation  of  America's  film  heritage. 

I  would  like  to  say,  however,  that  I  also  fully  support  title  I, 
which  seeks  to  reauthorize  the  National  Film  Preservation  Board. 
The  Film  Board  is  an  indispensable  element  in  ensuring  that  the 
progress  made  to  date  in  dealing  with  the  real  crisis  in  film  preser- 
vation can  be  continued  and  expanded. 

In  1992  Congress  asked  the  Film  Board  to  prepare  a  comprehen- 
sive report  on  the  nationwide  efforts  to  preserve  American  motion 
pictures.  The  Board,  with  the  invaluable  assistance  of  the  Library 
of  Congress,  accomplished  this  task  in  two  stages. 

First,  it  undertook  an  extensive  1-year  study  to  determine  the 
current  state  of  film  preservation  throughout  the  United  States. 
This  study  entitled,  "Film  Preservation  1993,"  persuasively  dem- 
onstrated that  America's  film  heritage  is  at  serious  risk. 

And  Chairman  Moorhead  has  already  mentioned  some  of  the 
findings  of  this  study.  Fewer  than  20  percent  of  feature  films  from 
the  1920's  survive  in  complete  form.  Of  the  films  made  from  1895 
to  1950,  less  than  half  survive.  Films  made  after  1950  continued 
to  be  endangered  by  many  threats  including  color  fading,  the  so- 
called  vinegar  syndrome,  and  sound  track  deterioration.  And  per- 
haps most  alarmingly,  funding  for  film  preservation,  which  has 
never  been  adequate,  has  fallen  to  less  than  half  its  1980  level 
when  adjusted  for  inflation. 

As  a  second  stage  the  Board  oversaw  the  creation  of  a  national 
plan  to  address  these  issues.  The  process  of  arriving  at  this  plan 
was  unprecedented.  For  the  first  time  archivists,  educators, 
filmmakers,  technical  specialists,  entertainment  industry  execu- 
tives and  others  came  together  to  find  solutions  to  film  preserva- 
tion problems. 

The  resulting  plan  entitled,  "Redefining  Film  Preservation,"  rep- 
resents the  consensus,  which  emerged  from  this  process.  And, 
Chairman  Moorhead,  I  would  like  to  ask  if  a  copy  of  the  plan  could 
be  included  as  part  of  my  written  statement. 

Mr.  Moorhead.  So  ordered. 

[See  appendix,  p.  423.] 

Mr.  Richmond.  The  centerpiece  of  this  plan  is  the  creation  of  a 
federally  chartered  foundation.  Working  with  the  film  preservation 


65 

community,  the  foundation  will  seek  to  raise  private  gifts  and  will 
be  eligible  to  match  those  gifts  with  a  limited  amount  of  Federal 
funds.  The  foundation  in  turn  will  establish  grant  programs  to 
make  its  assets  available  to  nonprofit  film-preserving  institutions 
throughout  the  country. 

The  foundation's  primary  role  will  be  to  help  preserve  and  make 
accessible  those  films  which  are  held  in  the  public  trust  by  non- 
profit institutions  and  which  simply  will  not  survive  without  public 
intervention.  These  films,  sometimes  referred  to  as  orphan  films, 
constitute  a  very  large  and  indispensable  portion  of  our  film  herit- 
age. 

They  include  newsreels,  documentaries  and  actuality  footage, 
independent  and  avant-garde  films,  socially  significant  amateur 
footage,  regional  materials  of  historical  interest,  films  that  have 
fallen  into  the  public  domain,  and  other  films  of  cultural  and  edu- 
cational value  whose  cop3n'ight  owners  are  unable  or  unwilling  to 
provide  long-term  preservation. 

Important  collections  of  such  films  exist  in  each  of  the  50  States. 
They  can  be  found  in  local  archives,  museums,  historical  societies, 
libraries,  and  universities. 

And  in  most  cases,  the  institutions  holding  these  collections  can- 
not afford  on  their  own  adequately  to  preserve,  store,  or  make  them 
accessible  to  the  public. 

In  addition  to  my  work  with  AMIA,  I  am  also  the  curator  of  the 
UCLA  Film  and  Television  Archives.  Turning  to  my  own  institution 
as  an  example,  UCLA  holds  many  collections  of  films  which  are 
unique  or  represent  the  best  remaining  copies.  Our  largest  collec- 
tion consists  of  more  than  5,000  hours  of  newsreel  footage  from  the 
19 10  through  the  early  1970's,  much  of  which  has  never  been  seen 
by  the  public. 

This  collection  contains  footage  from  all  over  the  country  and  all 
over  the  world,  but  since  these  hearings  are  being  held  in  Pasa- 
dena, I  checked  to  see  what  footage  existed  on  this  area.  We  have 
coverage  of  the  Tournament  of  Roses  parade  and  Rose  Bowl  games 
dating  back  to  the  1930's.  We  have  films  of  many  events  which  oc- 
curred over  the  years  at  the  California  Institute  of  Technology  and 
the  Jet  Propulsion  Laboratory. 

We  have  stories  documenting  an  automobile  race  through  the 
streets  of  Pasadena  in  1936,  new  techniques  being  used  by  the 
Pasadena  police  to  combat  crime  in  1938,  and  a  rally  by  the  Wom- 
en's Christian  Temperance  Union  in  Pasadena  in  1947  and  dozens 
more. 

The  archive  at  UCLA  is  probably  in  a  better  position  than  many. 
We  are  partially  funded  by  the  University  of  California.  And  we 
have  a  good  record  of  attracting  outside  support.  Despite  this  suc- 
cess, however,  we  need  help.  Without  it,  we  cannot  properly  store 
all  of  our  materials.  We  cannot  provide  students  and  the  public 
with  as  much  access  to  our  collections  as  we  should  and  we  cannot 
preserve  all  or  even  most  of  our  films,  including  the  Pasadena  foot- 
age I  just  mentioned. 

And  we  are  not  alone.  Other  major  archives  such  as  the  Library 
of  Congress,  the  Museum  of  Modern  Art,  George  Eastman  House 
as  well  as  hundreds  of  important  regional  local  and  specialized  ar- 
chives are  all  facing  similar  problems.  Each  year  the  Nation's  film 


66 

archives  are  losing  unique  footage,  historically  and  culturally  valu- 
able footage  which  deteriorates  beyond  saving  and  is  gone  forever. 

What  we  believe  is  needed  urgently  is  the  new  approach  rep- 
resented by  the  proposed  National  Film  Preservation  Foundation. 
Unlike  the  isolated  efforts  of  individual  archives,  the  foundation 
will  have  the  national  base  to  maximize  private  sector  fundraising, 
foster  public-private  partnerships  around  preservation  initiatives, 
assure  the  most  efficient  use  of  every  preservation  dollar  and  help 
address  problems  that  are  beyond  the  scope  of  any  one  institution. 

For  these  reasons,  I  believe  passage  of  H.R.  1734,  including  title 
II,  is  vital  to  ensuring  preservation  of  and  access  to  America's  film 
heritage  and  I  urge  you  to  give  it  your  support.  Thank  you. 

[The  prepared  statement  of  Mr.  Richmond  follows:] 


67 

Prepared  Statement  of  Edward  Richmond,  President,  Association  of  Moving 

Image  Archivists 


On  behalf  of  the  Association  of  Moving  Image  Archivists  (AMIA),  I  am  writing  in 
support  of  H.R.  1734,  the  National  Film  Preservation   Act  of  1995  (Title  I)  and  the 
National   Film  Preservation   Foundation    Act  (Title  II).    AMIA  is  a  professional 
association  established   to  provide  a  means  for  cooperation   among  individuals  concerned 
with  the  preservation   and  use  of  moving  image  materials.    AMIA  currently  represents 
nearly  250  professional  archivists  working  at  more  than  100  institutions  in  both  the  public 
and  private  sectors.    Its  members  constitute  most  of  the  working  professionals  in  the  film 
archive  field. 

I  believe  strongly  that  passage  of  H.R.  1734  is  vital  to  insuring  preservation   of  and 
access  to  America's  film  heritage.    For  the  purpose  of  this  statement.   1  will  confine  my 
remarks  to  Title  II,  which  establishes  a  federally  chartered   foundation  dedicated  to  the 
preservation  of  American  mouon  pictures.    I  would  like  to  say,  however,  that  I  also 
strongly  support  Title  I,  which  reauthonzes   the  National  Film  Preservation   Board.    If 
Congress  had  not  established   the  Film  Board,  the  nation's  film  preservation  crisis  may 


Association  of  Vlovinu  iniu)!t;  ArchivisLs>./o  Naiional  Center  for  Film  and  Video  Preservation.  The  American  Film  Institute 
IM)  Box27Wy  •  :;'21  North  Western  Avenue  •  Los  Angeles.  California  90027 


68 


Page  two 

never  have  been  addressed   in  a  cooperative  and  comprehensive    manner,  and  the  Board's 
reauthorization    is  an  indispensable   element  in  assuring  that  the  progress  made  to  date 
can  be  continued  and  expanded. 

I.   The  National   Film  Preservation    Report  . 

I  would  like  to  begin  by  providing  a  very  brief  overview  of  the  process  which  has 
resulted   in  the  proposal  to  create  a  national   film  preservation    foundation. 

Congress  originally  established   the  National  Film  Preservation   Board  in  1988. 
When  the  Board  was  reauthorized    in  1992.  Congress  added  to  its  duties  the  task  of 
preparing  a  comprehensive    report  on  the  nationwide  efforts  to  preserve  .American 
motion  pictures.    The  Board  accomplished   its  assignment  in  two  stages: 

STAGE  ONE:  the  National  Study.  The  Board  undertook  an  extensive  one  year 
study  to  determine   the  current  state  of  film  preservation   throughout   the  United  States. 
This  study,  which  was  published   in  June  of  1993  under  the  title  FILM  PRESERVATION 
1993,  persuasively  demonstrated    that  Amenca's  film  heritage  is  at  senous  risk.    Among 
its  alarming  findings  were  the  following: 

*  Fewer  than  20%  of  feature  films  from  the  1920s  survive  in  complete  form;  for 
features  from  the  1910s,  the  survival  rate  falls  to  10%.   Of  films  made  from  1895- 
1950,  less  than  half  survive. 

*  Films  made  after  1950  face  several  serious  threats  to  their  survival,  including 
"color  fading,"  the  so-called  "vinegar  syndrome,"  and  soundtrack  deterioration. 

*  Many  American   films  can  be  found  only  in  foreign  archives. 

*  Funding  for  film  preservation,  which  has  never  been  adequate,   has  fallen  to 
considerably  less  than  half  its  1980  level,  when  adjusted  for  inflation. 


69 


Page  three 

STAGE  TWO :  the  National   Plan .   The  Board  next  oversaw  the  creation  of  a 
national  plan  to  address  the  problems  identified  in  FILM  PRESERVATION     1993.  The 
process  of  arriving  at  this  plan  was  unprecedented    and  historic  in  nature.    For  the  first 
time,  archivists,  educators,  filmmakers,  technical  specialists,  and  entertainment    industry 
executives  all  came  together  to  discuss,  negotiate,  occasionally  to  argue,  but  ultimately  to 
find  solutions  to  film  preservation   problems.    More  than  thirty  people  directly 
participated   as  members  of  five  task  forces  and  committees,  which  met  in  person  or  by 
conference  call  more  than  twenty  times  over  a  period  of  six  months.    Through  the  task 
force  and  committee  members,  the  discussions  reached  out  to  hundreds  of  others 
working  in  all  the  professions  and  disciplines  mentioned   above. 

The  resulting  plan,  which  was  published  in  August  of  1994  under  the  title 
REDEFINING    FILM  PRESERVATION,    represents  the  consensus  which  emerged  from 
this  process.    1  think  I  am  safe  in  saying  that  it  is  widely  supported  by  all  elements  of  the 
film  community  involved  with  preservation. 

The  hallmark  of  the  plan  is  the  recognition  that  the  preservation   of  America's 
film  heritage  requires  a  comprehensive,   meaningful  and  ongoing  partnership  among 
public  and  non-profit  archives,  the  film  industry,  the  creative  community,  the  educational 
community,  other  segments  of  the  private  sector,  and  the  government. 

II.   The  National  Film  Preservation   Foundation  . 

In  all,  the  national  plan  outlines  thirty-one  specific  recommendations;    among 

these  are  proposals  for: 

*  Redesigning  preservation   policies  to  underscore  the  importance  of  low- 
temperature,    low-humidity  storage  in  retarding  film  deterioration. 


70 


Page  four 

•  Increasing  the  availability  of  films  for  education,  research  and  public  exhibition. 

•  Developing  public-private  partnerships  to  restore  selected  films,  share 
preservation   information,  and  repatriate    "lost"  American  films  from  foreign 
archives. 

However,  the  key  proposal  which  serves  as  the  necessary  centerpiece   for  the 
entire  plan  is  to  create  a  new  federally-chartered    foundation  which  would  raise  funds  for 
two  related  purposes:  (1)  to  promote  the  preservation   of  and  public  access  to  America's 
film  heritage,  concentrating   on  those  films  not  preserved  by  commercial   interests,  and  (2) 
to  further  the  implementation    of  other  components  of  the  national  plan  and  related 
activities. 

The  basic  concept  of  the  foundation   is  simple.    It  is  envisioned  as  a  501(c)(3) 
nonprofit  organization   in  the  District  of  Columbia.    Working  in  close  coordination   with 
the  film  preservation   community,  it  will  seek  to  raise  private  gifts  (both  cash  donations 
and  in-kind  contributions)   and  will  be  eligible  to  match  those  gifts  with  a  limited  amount 
of  federal  funds. 

The  foundation  in  turn  will  establish  grant  programs  to  make  its  assets  available 
to  non-profit  film  preserving  institutions  throughout  the  country.    Grants  will  be  awarded 
only  for  specific  projects,  and  no  foundation  funds  will  be  used  to  cover  administrative 
overhead  on  any  project.    The  types  of  projects  eligible  for  funding  might  include:    grants 
to  fund  the  archival  preservation   and  restoration   of  film  collections;  grants  to  help 
establish  regional  climate  controlled  storage  facilities  to  house  endangered   collections 
from  many  institutions;  grants  to  make  collections  available  to  the  public  through 
cataloging,  the  striking  of  access  and  exhibition  copies,  and  even  the  digitizing  of 
collections  of  special  educational   interest  to  facilitate  their  access  over  the  Internet. 


71 


Page  five 

III.   The  Role  of  the  National  Foundation  . 

Let  me  be  clear  about  one  point.    I  do  not  think  anyone  expects  or  wants  the 
foundation   to  fund  the  preservation   of  Hollywood  studio  films,  or  any  films  controlled  by 
copyright  owners  who  are  capable  and  willing  to  preserve  them.    Such  films  should  be 
and,  in  most  cases,  are  being  preserved  by  their  owners,  either  through  internal  company 
preservation   programs  or  through  collaborative  restoration   programs  established  between 
for-profit  companies  and  non-profit  archives. 

Rather,  the  foundation's  role  will  be  to  help  preserve  those  films  which  are  held 
in  the  public  trust  by  non-profit  institutions  and  which  simply  will  not  survive  without 
public  intervention.    These  films   -  sometimes  referred  to  as  "orphan"  films  -  constitute  a 
very  large  and  indispensable   portion  of  America's  film  heritage.    They  include  newsreels, 
documentaries    and  actuality  footage,  independent    and  avant-garde  films,  socially 
significant  amateur  footage,  regional  materials  of  historical  interest,  films  that  have  fallen 
into  the  public  domain,  and  other  films  of  cultural  and  educational    value  whose  copyright 
owners  are  unable  or  unwilling  to  provide  long-term  preservation. 

Important  collections  of  such  films  exist  in  each  of  the  fifty  states.    They  can  be 
found  in  local  archives,  museums,  historical  societies,  libraries,  universities,  and  non- 
profit associations.    And  in  most  cases,  the  institutions  holding  these  collections  cannot 
afford  on  their  own  adequately   to  preserve  them,  store  them,  or  make  them  accessible  to 
the  public.    This  is  the  reality  which  film  preserving  institutions  confront  on  a  daily  basis. 

In  addition  to  my  work  with  AMI  A,  1  am  the  Curator  of  the  UCLA  Film  and 
Television  Archive.    Turning  to  my  own  institution  only  as  an  example,  the  Archive  at 
UCLA  holds  many  collections  of  films  which  are  unique  or  which  represent  the  best 


72 


Page  six 

remaining  copies.    Our  largest  such  collection  consists  of  more  than  5,000  hours  of 
historical  newsreel  footage  dating  from  the  1910s  through  the  early  1970s,  much  of  which 
has  never  before  been  seen  publicly.   It  is  a  virtual  treasure  trove  for  the  study  of  the 
twentieth  century.    The  collection  includes  extensive  footage  on  most  major  events  in  the 
areas  of  American  government,  international    relations,  social  and  cultural  developments, 
as  well  as  coverage  of  most  major  figures  in  the  fields  of  politics,  busmess,  technology, 
entertainment,    and  sports. 

Since  heanngs  on  H.R.  1734  are  being  held  in  Pasadena.  I  checked  the  newsreel 
collection  for  footage  on  this  area.  We  have  extensive  coverage  of  the  Tournament  of 
Roses  Parades  and  Rose  Bowl  Games  daimg  back  at  least  to  the  early  1930s.  We  have 
films  of  many  events  which  occurred  over  the  years  at  the  California  Institute  of 
Technology  and  the  Jet  Propulsion  Laboratory.  We  also  have  stones  documenting  an 
antique  automobile  race  through  the  streets  of  Pasadena  in  1936,  new  techniques  being 
used  by  the  Pasadena  police  to  combat  cnme  in  1938,  a  rally  by  the  Women's  Christian 
Temperance    Union  in  Pasadena  in  1947.  and  dozens  more. 

Now,  the  Archive  at  UCLA  is  in  a  better  position  than  many.    We  are  partially 
funded  by  the  University  of  California,  and  our  track  record  in  attracting  outside  support 
is  probably  above  average.    Despite  this  success,  we  cannot  properly  store  all  of  our 
materials:  we  cannot  provide  students,  educators  and  the  public  with  as  much  access  to 
our  collections  as  we  should;  and  we  cannot  hope  to  preserve  all  of  our  films,  most  of 
our  films,  or  even  a  substantial   portion  of  our  films  --  not  without  help. 

And  UCLA  is  not  alone.    The  same  can  be  said,  to  greater  or  lesser  degrees,  of 
most  other  archives  and  film  preserving  institutions  throughout  the  country.    Other  major 


73 

Page  seven 

film  archi\-es  such  as  the  Libran  of  Ccxigress.  the  Museum  of  Modem  An.  the 
Intematioaal    Museum  of  Photography  and  Film,  as  well  as  hundreds  of  important 
regional.  local  and  specialized  archives  are  all  dicing  similar  probiems. 

Each  v'ear  the  nation's  film  archives  lose  unique  footage  -  historically  and 
culturally  valuable  fbocage  \k-hich  is  then  gone  forever.    .Mready  in  1995.  UCL.A  has  been 
forced  to  dispose  of  almost  30.000  feet  of  f'vn  because  it  deteriorated,    in  some  cases 
literally  to  dust,  before  «%  could  raise  funds  to  preserve  it   .\nd  the  same  situation,  on 
larger  and  smaller  scales,  is  being  repeated   all  ov-er  the  country,  all  the  time. 

X^Tiai  is  needed  urgently  is  the  ne*  ap{Hoach  represented    by  the  proposed 
national  film  preservation   foundation.    Unlike  the  isolated  efforts  of  individual  archives, 
the  foundation   vnll  have  the  necessary  national  base  to:  (a)  maximize  private  sector 
fimdraising.  (b)    foster  public-pnvate  partnerships  around  preservation   initiatives,  (c) 
insure  the  most  effective  use  of  every  preser%-aiion   dollar,  and  (d)  help  address  {nnblems 
beyond  the  scope  of  any  one  institution. 

For  these  reasons.  I  urge  >ou  to  suppon  H.R.  1734.  itKluding  Title  n.   Please  give 
the  nation's  film  archives  the  national  foundation  we  need  to  save  America's  film 
heritage,  for  the  benefit  of  the  .American  people. 


74 

Mr.  MOORHEAD.  Mr.  Murphy. 

STATEMENT  OF  EDWARD  P.  MURPHY,  PRESffiENT  AND  CEO, 
NATIONAL  MUSIC  PUBLISHERS'  ASSOCIATION,  INC. 

Mr.  Murphy.  Good  morning,  Mr.  Chairman  and  members  of  the 
subcommittee.  I  am  Edward  P.  Murphy,  president  and  chief  execu- 
tive officer  of  the  National  Music  PubHshers'  Association,  Inc. 
[NMPA].  I  am  pleased  to  appear  before  you  today  to  provide  the 
American  music  publishing  community's  views  on  H.R.  989,  the 
Cop3rright  Term  Extension  Act  of  1995. 

NMPA  represents  more  than  600  music  publishers  and  NMPA's 
subsidiary,  the  Harry  Fox  Agency,  serves  as  a  licensing  agent  for 
more  than  14,000  music  publishers  located  in  California,  Ten- 
nessee, New  York,  and  throughout  the  United  States. 

Music  publishers  generally  speaking  are  holders  of  copyright  in 
musical  works.  The  publisher's  role  is  to  nurture  the  creativity  of 
song  writers  and  composers  through  artistic,  professional  and  eco- 
nomic support.  Following  the  creation  of  a  musical  work,  the  pub- 
lisher functions  as  a  promoter  seeking  recordings,  performances 
and  other  modes  of  distribution. 

The  publisher  is  the  business  side  a  partnership  with  music  cre- 
ators. He  or  she  administers  the  copyright  in  the  work  and  takes 
steps  to  protect  it  from  unauthorized  exploitation,  including  acting 
as  an  advocate,  sometimes  individually  and  sometimes  through 
NMPA,  for  strong  cop3n*ight  protection  and  enforcement  throughout 
the  world. 

The  music  publisher  also  serves  as  a  counselor  in  the  overall  de- 
velopment of  the  creator's  career.  For  all  of  their  contributions  to 
the  creative  process,  the  music  publishers  enjoy  a  close  partnership 
with  their  song  writer  and  composer  colleagues. 

In  light  of  the  special  role  that  the  music  publishers  play  in  the 
creative  process,  and  because  of  the  strong  bonds  between  publish- 
ers and  songwriters  and  composers,  NMPA  is  especially  pleased  to 
voice  its  support  for  term  extension.  The  trade  arguments  in  sup- 
port of  term  extension  are  overwhelmingly  persuasive.  More  and 
more  the  U.S.  economy  is  supported  by  the  production  of  intellec- 
tual property  by  American  creators  and  its  dissemination  to  an 
eager  world  market. 

According  to  the  economic  study  released  by  the  International  In- 
tellectual Property  Alliance  in  1993,  the  American  copyright  indus- 
tries accounted  for  nearly  4  percent  of  the  gross  domestic  product 
and  produced  nearly  $46  billion  in  foreign  sales. 

The  benefits  to  the  United  States  of  maintaining  a  leadership  po- 
sition in  advancing  strong  international  copyright  norms  are  self- 
evident.  In  numerous  bilateral  negotiations,  in  the  North  American 
Free  Trade  Agreement  and  in  the  Uruguay  Round  Agreement  and 
on  the  trade-related  aspects  of  intellectual  property  rights,  United 
States'  persistence  yielded  improved  levels  of  protection. 

As  the  world's  leading  provider  of  copyright  content,  the  United 
States  charted  the  way  for  recognition  of  exclusive  rental  rights  in 
certain  works,  for  copyright  protection  for  software,  and  for  an  ade- 
quate term  of  protection  for  sound  recordings  in  countries  that  do 
not  protect  those  works  under  copyright. 


75 

On  the  issue  of  duration  of  protection  for  copyrighted  works  in 
general,  however,  the  European  Union  is  pointing  the  way,  and 
NMPA  fears  that  way  will  be  a  dark  and  hostile  one  for  American 
creators  and  copyright  owners.  The  E.U.  directive  invokes  reciproc- 
ity through  the  Berne  Convention  rule  of  the  shorter  term.  Works 
of  U.S.  origin  will  fall  into  the  public  domain  in  the  countries  of 
the  European  Union  at  the  expiration  of  their  life  plus  50  term 
while  those  same  countries  will  grant  works  of  their  own  authors 
an  additional  20  years  of  protection. 

The  only  way  U.S.  works  can  qualify  for  the  extended  term  in 
Europe  is  for  our  law  to  grant  an  equal  extension.  In  other  words, 
for  H.R.  989  to  become  law. 

As  this  subcommittee  considers  H.R.  989  and  issue  of  term  ex- 
tension from  a  domestic  policy  standpoint,  however,  NMPA  urges 
you  to  consider  addressing  an  additional  point  not  now  covered  by 
the  bill;  the  issue  of  duration  of  transfers  of  rights. 

U.S.  copyright  law,  back  to  the  very  first  copyright  act  passed  in 
1790,  has  struck  a  balance  between  interests  of  individual  authors 
who  create  works  and  the  publishers  who  foster  the  goals  of  copy- 
right by  promoting  the  wide  dissemination  of  those  works  to  the 
public.  In  various  acts  up  to  and  including  the  1909  Copyright  Act, 
this  was  accomplished  by  a  split-term  of  protection. 

The  1909  act,  for  example,  divided  56  years  of  copyright  protec- 
tion into  two  28-year  terms,  often  referred  to  as  the  original  and 
renewal  terms.  The  theory  behind  this  approach  in  part  was  to  give 
the  author  a  second  opportunity  at  the  beginning  of  the  second  or 
renewal  term,  to  renegotiate  a  transfer  of  rights  that  may  have 
proven  to  be  less  than  satisfactory.  The  author  was  given  a  "second 
bite  at  the  apple"  that  could  take  into  account  the  demonstrated 
value  of  the  works  in  the  marketplace. 

With  the  evenly  divided  bifurcated  term,  each  time  the  duration 
of  the  copyright  was  extended  to  the  benefit  of  authors,  publishers 
who  made  the  initial  investment  in  bringing  the  work  to  the  public 
received  an  extended  opportunity  to  recover  their  investment 
through  a  longer  original  term  of  protection. 

Congress,  with  an  eye  toward  the  U.S.  accession  to  the  Berne 
Convention,  determined  in  the  1976  Copyright  Act  to  switch  from 
a  fixed  56-year  term  of  protection  to  the  Berne's  minimum  of  life 
of  the  author  plus  50  years. 

In  the  years  of  congressional  review  that  preceded  the  major 
statutory  rewrite,  the  question  of  how  to  maintain  a  balance  be- 
tween creators'  and  publishers'  interests  achieved  by  the  split  copy- 
right term  was  thoroughly  debated. 

The  notion  of  incorporating  a  statutory  cap  on  the  duration  of 
copyright  transfers  was  eventually  agreed  upon  as  the  appropriate 
approach.  When  it  was  suggested  that  the  cap  be  set  at  25  years, 
Julian  Abeles,  then  head  of  the  organization  had  later  became 
NMPA,  pointed  out  that  a  25-year  limitation  would  make  publish- 
ers 3  years  worse  off  than  they  had  been  under  the  1909  act's  28- 
year  original  term. 

Before  the  panel  of  experts  convened  by  the  Copyright  Office,  Mr. 
Abeles  said: 

Today  there  are  so  few  songs  of  any  one  publisher  that  have  the  potential.  The 
publisher  has  to  employ  all  possible  ways  and  means,  including  a  substantial  ex- 


76 

penditure,  to  promote  them.  The  competition  is  drastic  today,  and  few  songs  ever 
become  popular  standards.  If  you  are  going  to  terminate  the  rights  after  25  years, 
you  are  going  to  put  the  legitimate  publishers  out  of  business,  because  they  must 
live  on  those  few  popular  standards. 

It  is  the  income  from  those  popular  standards  he  receives  that  places  him  in  a 
position  where  he  can  exploit  the  new  compositions.  Such  a  provision  would  mean 
the  death  knell  of  our  industry.  I  ask,  why  this  radical  curtailment  of  existing 
rights,  instead  of  participation  in  the  extension  of  such  rights? 

Today,  I  ask  the  same  question.  Why  extend  the  duration  of 
copyright  protection  without  an  equitable  extension  of  the  statutory 
Hmit  on  the  duration  of  transfers? 

Following  Mr.  Abeles's  appeal,  the  preliminary  draft  of  the  act 
was  amended  to  provide  for  termination  of  transfers  after  35  years, 
and,  in  fact,  that  is  now  codified  in  section  203.  Congress  recog- 
nized, then,  that  the  extended  term  warranted  an  extended  period 
in  which  publishers  could  recoup  their  investments  from  the  cre- 
ative process  and  the  promotion  of  the  works. 

I  would  like  to  illustrate  with  a  little  chart  to  show  under  the 
1909  act  what  the  relative  duration  of  transfers  was  in  terms  of 
years  under  the  bifurcated  term  and  what  it  is  under  the  1976  act, 
and  under  the  legislation  being  proposed  here.  The  chart  shows 
what  would  happen  in  terms  of  a  balance  between  the  publishers' 
rights  if  they  were  left  unamended  the  way  it  is  listed  in  the  bill 
now. 

What  we  are  trying  to  bring  to  your  attention  is  that  the  publish- 
er's interest  is  what  we  are  trying  to  get  across  here  and  if  we  don't 
do  something  to  change  what  has  been  put  forward  here,  there  will 
be  a  significant  imbalance  of  the  rights  that  exit  right  now. 

What  Mr.  Abeles  noted  more  than  30  years  ago  is  no  less  true 
today.  That  many  works  and  the  investments  in  those  works  never 
show  a  profit.  Given  the  rich  variety  of  music  available  to  the 
American  public,  few  think  about  it,  but  for  every  song  that  be- 
comes a  hit,  hundreds,  many  more,  go  unnoticed. 

From  a  business  standpoint,  duration  of  the  publisher's  oppor- 
tunity to  exploit  a  work  and  recover  his  or  her  initial  investment 
is  crucial.  While  this  is  true  for  all  categories  of  music,  it  is  particu- 
larly true  for  serious  works — classical  works  and  musical  theater. 

According  to  the  Music  Publishers'  Association,  an  organization 
whose  constituency  is  primarily  involved  with  the  production  of 
sheet  music,  and  that  endorses  NMPA's  points  of  view,  the  rising 
costs  of  production  makes  investment  in  serious  copyrighted  mate- 
rial a  very  speculative  undertaking. 

MPA  has  stated  that  in  the  United  States,  printing  costs  alone 
for  a  symphonic  work  average  $15,000.  Printing  costs  for  a  full  op- 
eratic work  range  from  $100,000  to  $150,000.  The  markets  for  re- 
covering such  an  investment  are  small  and  have  been  harmed 
greatly  by  increasingly  sophisticated  photocop3dng  technology. 

The  problems  confronting  publishers  of  such  works  is 
compounded  because  much  serious  music  gains  little  public  expo- 
sure or  acceptance  until  many  years  after  its  creation.  For  example, 
the  famous  Barber  composition,  "Adagio  for  Strings,"  experienced 
only  modest  economic  success  following  its  debut  in  1939.  It  be- 
came popular  25  years  later,  however,  when  the  piece  of  music  was 
used  in  connection  with  the  funeral  of  President  Kennedy. 


77 

Another  Barber  work,  an  opera,  "Anthony  and  Cleopatra," 
premiered  in  1966,  but  it  was  not  performed  or  recorded  again 
until  1991.  This  cycle  of  earnings  which  is  typical  of  serious  and 
classical  works  means  that  a  composition,  which  may  some  day  be 
recognized  as  an  American  classic  may  not  return  a  profit  to  the 
creator's  descendants  or  to  the  music  publisher  owner  within  the 
current  term  of  copyright  protection,  let  alone  during  the  35-year 
period  set  under  section  203  for  the  duration  of  transfers. 

The  term  of  protection  granted  the  author  and  the  heirs  under 
the  1976  act  was  life  plus  50.  The  term  of  works  made  for  hire  is 
generally  75  years.  But  publishers  who  take  copyrights  by  transfer 
and  who  invest  a  range  of  resources  in  promoting  the  work  and  its 
success,  have  their  rights  terminated  in  35  years. 

Like  many  other  copyright-based  businesses,  the  music  publish- 
ing business  is  a  global  one.  In  assessing  where  to  invest  limited 
resources,  publishers  must  look  at,  among  other  things,  the  state 
of  national  law  as  it  affects  their  operations.  Nations  of  the  Euro- 
pean Union  do  not  limit  the  duration  of  transfers  by  statute,  as  the 
United  States  does.  Under  the  laws  in  these  important  markets 
publishers  and  writers  are  free  to  negotiate  a  transfer  for  the  dura- 
tion of  copyright,  or  any  portion  of  the  term. 

Without  some  adjustment  of  the  Cop3n'ight  Act's  existing  provi- 
sions on  term  of  transfers,  U.S.  law  may  have  the  unintended  effect 
of  driving  publisher  investment  overseas. 

We  urge  you  to  consider  these  points  carefully  as  you  proceed  in 
your  review  of  this  important  legislation  and  to  act  to  maintain  the 
balance  between  author  and  publisher  interests  that  has  been  a 
feature  of  the  U.S.  copyright  law  virtually  since  its  inception. 

We  look  forward  to  working  with  the  subcommittee  on  this  im- 
portant point  and  towards  passage  of  H.R.  989. 

In  closing,  I  would  like  to  offer  one  final  observation.  In  the  pe- 
riod of  consideration  of  the  1976  Act,  Congress  recognized  that, 
with  each  day  that  passed,  works  were  falling  into  the  public  do- 
main. Some  heirs  would  lose  copyright  protection  forever,  in  part 
owing  to  the  press  of  other  legislative  priorities. 

Should  consideration  of  this  important  legislation  be  delayed,  I 
strongly  urge  this  body  to  follow  the  precedent  of  earlier  Con- 
gresses and  pursue  a  resolution  calling  for  a  temporary  moratorium 
on  the  expiration  of  copjn'ight.  Such  a  step  would  be  a  demonstra- 
tion of  the  commitment  to  the  preservation  of  the  jewels  in  the 
crown  of  our  Nation's  cultural  heritage  and  enduring  respect  for 
the  American  artists  and  creators. 

Again,  our  thanks  to  the  chairman  and  so  many  members  of  the 
subcommittee  for  their  sponsorship  of  this  very  important  legisla- 
tion. Thank  you. 

[The  prepared  statement  of  Mr.  Murphy  follows:] 


78 

Prepared  Statement  of  Edward  P.  Murphy,  President  and  CEO,  National 
Music  Publishers'  Association,  Inc. 

Good  morning  Mr.  Chairman  and  members  of  the  Subcommittee.  I  am 
Edward  P.  Murphy,  president  and  chief  executive  officer  of  the  National  Music 
Publishers'  Association,  Inc.  ("NMPA"). 

I  am  pleased  to  appear  before  you  today  to  provide  the  American  music 
publishing  community's  views  on  H.R.  989,  the  "Copyright  Term  Extension  Act 
of  1995."  NMPA  represents  more  than  600  music  publishers,  and  NMPA's 
subsidiary,  The  Harry  Fox  Agency,  Inc.,  serves  as  licensing  agent  for  more  than 
13,000  music  publishers,  located  in  California,  Tennessee,  New  York  and 
throughout  the  United  States. 

Music  publishers,  generally  speaking,  are  holders  of  copyright  in  musical 
works.  The  publishers'  role  is  to  nurture  the  creativity  of  songwriters  and 
composers  through  artistic,  professional,  and  economic  support.  Following  the 
creation  of  a  musical  work,  the  publisher  functions  as  its  promoter,  seeking 
recordings,  performances  and  other  modes  of  distribution. 

The  publisher  is  the  business  side  of  a  partnership  with  the  music  creator. 
He  or  she  administers  the  copyright  in  the  work  and  takes  steps  to  protect  it 


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from  unauthorized  exploitation,  including  acting  as  an  advocate  (sometimes 
individually  and  sometimes  through  NMPA)  for  strong  copyright  protection  and 
enforcement  throughout  the  world. 

The  music  publisher  also  serves  as  a  counsellor  in  the  overall  development 
of  the  creator's  career.  For  all  of  their  contributions  to  the  creative  process, 
music  publishers  enjoy  a  close  partnership  with  their  songwriter  and  composer 
colleagues. 

In  light  of  the  special  role  that  music  publishers  play  in  the  creative 
process,  and  because  of  the  strong  bonds  between  publishers  and  songwriters  and 
composers,  NMPA  is  especially  pleased  to  voice  its  support  for  term  extension. 

The  trade  arguments  in  support  of  term  extension  are  overwhelmingly 
persuasive.  More  and  more,  the  U.S.  economy  is  supported  by  the  production 
of  intellectual  property  by  American  creators  and  its  dissemination  to  an  eager 
world  market.  According  to  an  economic  study  released  by  the  International 
Intellectual  Property  Alliance,  in  1993,  the  American  copyright  industries 
accounted  for  nearly  four  percent  of  the  Gross  Domestic  Product  and  produced 
nearly  $46  billion  in  foreign  sales. 

The  benefits  to  the  United  States  of  maintaining  a  leadership  position  in 
advancing  strong  international  copyright  norms  are  self  evident.  In  numerous 
bilateral  negotiations,  in  the  North  American  Free  Trade  Agreement  and  in  the 
Uruguay  Round  agreement  on  the  Trade-Related  Aspects  on  Intellectual 
Property  Rights,  the  United  States'  persistence  yielded  improved  levels  of 


80 

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protection.    As  the  world's  leading  provider  of  copyright  "content,"  the  U.S. 
charted  the  way  for  the  recognition  of  exclusive  rental  rights  in  certain  works,  for 
copyright  protection  for  software,  and  for  an  adequate  term  of  protection  for 
sound  recordings  in  countries  that  do  not  protect  those  works  under  copyright. 

On  the  issue  of  duration  of  protection  for  copyrighted  works  in  general, 
however,  the  European  Union  is  pointing  the  way.  And  NMPA  fears  that  way 
will  be  a  dark  and  hostile  one  for  American  creators  and  rights  owners.  The 
E.U.  directive  invokes  reciprocity  through  the  Berne  Convention's  "rule  of  the 
shorter  term."  Works  of  U.S.  origin  will  fall  into  the  public  domain  in  the 
countries  of  the  European  Union  at  the  expiration  of  their  life-plus-50  term, 
while  those  same  countries  will  grant  works  of  their  own  authors  an  additional 
20  years  of  protection.  The  only  way  U.S.  works  can  qualify  for  the  extended 
term  is  for  our  law  to  grant  an  equal  extension  --  in  other  words,  for  H.R.  989 
to  become  law. 

As  this  Committee  considers  H.R.  989  and  the  issue  of  term  extension 
from  a  domestic  policy  standpoint,  however,  NMPA  urges  you  to  consider  an 
addressing  an  additional  point  not  now  covered  by  the  bill:  the  issue  of  the 
duration  of  transfers  of  rights. 

U.S.  copyright  law,  back  to  the  very  first  Copyright  Act  passed  in  1790, 
has  struck  a  balance  between  the  interests  of  individual  authors  who  create  works 
and  the  publishers  who  foster  the  goals  of  copyright  by  promoting  the  wide 
dissemination  of  those  works  to  the  public.  In  various  Acts,  up  to  and  including 


81 


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the  1909  Copyright  Act,  this  was  accomplished  by  a  split-term  of  protection.  The 
1909  Act,  for  example,  divided  56  years  of  copyright  protection  into  two  28-year 
terms,  often  referred  to  as  the  original  and  renewal  terms.  The  theory  behind 
this  approach,  in  part,  was  to  give  the  author  a  second  opportunity,  at  the 
beginning  of  the  second  or  renewal  term,  to  renegotiate  a  transfer  of  rights  that 
may  have  proven  to  be  less  than  satisfactory.  The  author  was  given  a  "second 
bite  at  the  apple"  that  could  take  into  account  the  demonstrated  value  of  the 
work  in  the  marketplace. 

With  the  evenly  divided,  bifurcated  term,  each  time  the  duration  of 
copyright  was  extended  to  the  benefit  of  authors,  publishers  who  made  the  initial 
investment  in  bringing  a  work  to  the  public  received  an  extended  opportunity  to 
recover  their  investment  through  a  longer  original  term  of  protection. 

Congress,  with  an  eye  toward  U.S.  accession  to  the  Berne  Convention, 
determined  in  the  1976  Copyright  Act  to  switch  from  a  fixed  56-year  term  of 
protection  to  Berne's  minimum  of  the  life  of  the  author  plus  50  years.  In  the 
years  of  congressional  review  that  preceded  that  major  statutory  rewrite,  the 
question  of  how  to  maintain  the  balance  between  creators'  and  publishers' 
interests  achieved  by  the  split  copyright  term  was  thoroughly  debated. 

The  notion  of  incorporating  a  statutory  "cap"  on  the  duration  of  copyright 
transfers  was  eventually  agreed  upon  as  the  appropriate  approach.  When  it  was 
suggested  that  the  cap  be  set  at  25  years,  Julian  Abeles,  then  head  of  the 
organization  that  later  became  NMPA,  pointed  out  that  the  25-year  limitation 


82 


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would  make  publishers  three  years  worse  off  than  they  had  been  in  under  the 

1909  Act's  28-year  original  term.    Before  a  panel  of  experts  convened  by  the 

Copyright  Office,  Mr.  Abeles  said: 

[t]oday  there  are  so  few  songs  of  any  one  publisher  that  have  potential. 
The  publisher  has  to  employ  all  possible  ways  and  means,  including 
substantial  expenditure,  to  promote  them.  The  competition  is  drastic 
today,  and  few  [songs]  ever  become  popular  standards.  If  you  are  going 
to  terminate  the  rights  after  25  years,  you  are  going  to  put  the  legitimate 
publishers  out  of  business,  because  they  must  live  on  those  few  popular 
standards.  It  is  the  income  from  those  popular  standards  he  receives  that 
places  him  in  a  position  where  he  can  exploit  new  compositions.  Such  a 
provision  would  mean  the  death  knell  of  the  industry.  I  ask,  why  this 
radical  curtailment  of  existing  rights,  instead  of  participation  in  the 
extension  of  such  rights.   [Emphasis  added.] 

Today,  I  ask  the  same  question.  Why  extend  the  duration  of  copyright 
protection  without  an  equitable  extension  of  the  statutory  limit  on  the  duration 
of  transfers? 

Following  Mr.  Abeles  appeal,  the  preliminary  draft  of  the  Act  was 
amended  to  provide  for  termination  of  transfers  after  35  years,  and,  in  fact,  that 
is  period  now  codified  in  section  203.  Congress  recognized  then  that  extended 
term  warranted  an  extended  period  in  which  publishers  could  recoup  their 
investments  in  the  creative  process  and  in  the  promotion  of  works. 

What  Mr.  Abeles  noted  more  than  30  years  ago  is  no  less  true  today:  that 
many  works  --  and  the  investments  in  those  works  --  never  show  a  profit.  Given 
the  rich  variety  of  music  available  to  the  American  public,  few  think  about  it,  but 
for  every  song  that  becomes  a  hit,  hundreds  --  maybe  more  --  go  unnoticed. 


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From  a  business  standpoint,  duration  of  the  publisher's  opportunity  to 
exploit  a  work  and  recover  his  or  her  initial  investment  is  crucial.  While  this  is 
true  for  all  categories  of  music,  it  is  particularly  true  for  serious  works,  classical 
works  and  musical  theater.  According  to  the  Music  Publishers'  Association,  an 
organization  whose  constituency  is  primarily  involved  with  the  production  of  sheet 
music,  the  rising  costs  of  production  make  investment  in  serious  copyrighted 
material  a  very  speculative  undertaking.  MPA  has  stated  that,  in  the  U.S., 
printing  costs  alone  for  a  symphonic  work  average  $15,000.  Printing  costs  for  a 
full  operatic  work  range  from  $100,000  to  $150,000.  The  markets  for  recovering 
such  investments  are  small  (and,  have  been  harmed  greatly  by  increasingly 
sophisticated  photocopying  technology). 

The  problem  confronting  publishers  of  such  works  is  compounded  because 
much  serious  music  gains  little  public  exposure  or  acceptance  until  many  years 
after  its  creation.  For  example,  the  famous  Barber  composition,  "Adagio  for 
Strings,"  experienced  only  modest  economic  success  following  its  debut  in  1939. 
It  became  popular  25-years  later,  however,  when  the  piece  was  used  in 
connection  with  the  funeral  of  President  Kennedy.  Another  Barber  work,  the 
opera  "Anthony  and  Cleopatra,"  premiered  in  1966,  but  was  not  performed  or 
recorded  again  until  1991.  TTiis  cycle  of  earnings,  which  is  typical  of  serious  and 
classical  works,  means  that  a  composition  which  may  some  day  be  recognized 
as  an  American  classic  may  not  return  a  profit  to  the  creator's  descendants  or  to 
the  music  publisher  owner  within  the  current  term  of  copyright  protection. 


84 


-7- 

The  term  of  protection  granted  the  author  and  heirs  under  the  1976  Act 
is  life-plus-50  years.  The  term  for  works  made  for  hire  is  generally  75  years.  But 
publishers  who  take  copyrights  by  transfer,  and  who  invest  a  range  of  resources 
into  promoting  the  work  and  its  success,  have  their  rights  terminated  at  35  years. 

Like  many  other  copyright-based  businesses,  the  music  publishing  business 
is  a  global  one.  In  assessing  where  to  invest  limited  resources,  publishers  must 
look  at,  among  other  things,  the  state  of  national  law  as  it  affects  their 
operations.  Nations  of  the  European  Union  do  not  limit  the  duration  of  transfers 
by  statute,  as  the  U.S.  does.  Under  the  laws  in  these  important  markets, 
publishers  and  writers  are  free  to  negotiate  a  transfer  for  the  duration  of  the 
copyright,  ^r  any  portion  of  the  term.  Without  some  adjustment  of  the  Act's 
existing  provisions  on  termination  of  transfer,  U.S.  law  may  have  the  unintended 
effect  of  driving  publisher  investment  overseas. 

We  urge  you  to  consider  these  points  carefully  as  you  proceed  in  your 
review  of  this  important  legislation,  and  to  act  to  maintain  the  balance  between 
author  and  publisher  interests  that  has  been  a  feature  of  U.S.  copyright  law, 
virtually  since  its  inception.  We  look  forward  to  working  with  the  Subcommittee 
on  this  important  point  and  toward  passage  of  H.R.  989. 

In  closing,  I  would  like  to  offer  one  final  observation.  In  the  period  of 
consideration  of  the  1976  Act,  Congress  recognized  that,  with  each  day  that 
passed,  works  were  falling  into  the  public  domain.  Some  heirs  would  loose 
copyright  protection  forever,  in  part  owing  to  the  press  of  other  legislative 


85 


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priorities.  Should  consideration  of  this  important  legislation  be  delayed,  I 
strongly  urge  this  body  to  follow  the  precedent  of  earlier  Congresses,  and  pursue 
a  resolution  calling  for  a  temporary  moratorium  on  the  expiration  of  copyright. 
Such  a  step  would  be  a  demonstration  of  commitment  to  the  preservation  of  the 
jewels  in  the  crown  of  our  nation's  cultural  heritage  and  of  enduring  respect  for 
America's  artists  and  creators. 

Again,  our  thanks  to  the  Chairman  and  so  many  members  of  the 
Subcommittee  for  their  sponsorship  of  this  important  legislation. 


86 

Mr.  MOORHEAD.  Thank  you  very  much.  The  procedure  we  are 
going  to  follow  now  is  that  each  one  of  the  members  will  have  5 
minutes  to  ask  questions.  If  it  is  necessary,  we  could  have  a  second 
round. 

I  am  going  to  give  both  Mr.  Conyers  and  Mr.  Bono,  who  were  late 
for  no  reason  of  their  own  fault  whatsoever — they  had  a  little  prob- 
lem finding  the  building  and  the  bus  had  left  for  John  Conyers,  so 
they  will  have  time  to  make  an  opening  statement  if  they  desire 
to  do  so.  I  will  take  the  first  5  minutes. 

Mr.  Murphy,  you  have  told  us  what  is  presently  wrong  with  the 
law  and  that  the  bill  that  we  have  doesn't  really  correct  the  prob- 
lems that  you  want. 

I  would  appreciate  it  if  you  would  give  us  specific  recommenda- 
tions in  writing  at  a  later  time  as  to  how  to  correct  the  problem 
that  you  are  concerned  with.  And  anyone  else  that  has — on  the 
panel  that  has  a  concern  about  this  issue,  can  also  make  comments 
and  we  will  put  it  in  our  record. 

Opponents  of  copyright  term  extension  point  out  that  there  are 
a  number  of  benefits  to  the  public  domain  that  will  be  lost  or  post- 
poned as  a  result  of  this  legislation. 

Ms.  Bergman,  how  would  you  respond  to  that? 

Ms.  Bergman.  Well,  I  think  the  point  was  well  alluded  to  by  my 
colleague  on  my  right,  Mr.  Valenti,  when  he  spoke  of  the  fact  that 
the  consumer  really  does  not  have  any  benefit  when  a  work  goes 
into  public  domain.  The  last  time  I  looked,  a  recording  of  a  Bee- 
thoven symphony,  for  example,  cost  no  less  to  a  consumer  than  a 
current  pop  album. 

I  also  think  that  it  is  a  question  of  economics.  It  is  a  question 
of  getting  the  works  for  free  and  they  are  not  free  to  the  consumer 
just  because  they  are  in  the  public  domain.  Rather,  they  became 
unavailable  because  there  is  no  one  to  promote  them  or  because 
they  are  not  protected.  They  are  not  promoted  or  they  degrade,  in 
the  case  of  film  or  they  go  out  of  print,  in  the  case  of  books  or  re- 
cordings. I  think  the  benefit  to  the  public  is  not  served  by  having 
works  go  into  the  public  domain. 

Mr.  MooRHEAD.  Mr.  Valenti,  in  Europe  there  is  not  an  equiva- 
lent work-for-hire  system  for  motion  pictures.  Wouldn't  extending 
the  copyright  term  in  work-for-hire  situations  from  75  to  95  years 
give  American  companies  more  protection  than  their  European 
counterparts? 

Mr.  Valenti.  What  protection  would  they  get,  Mr.  Chairman? 

Mr.  MoORHEAD.  Moving  it  from  75  to  95  for  work-for-hire  situa- 
tions. 

Mr.  Valenti.  Of  course,  we  are  talking  about — one  is  the  Euro- 
pean method  or  process  of  copyright  is  called  droit  morale,  moral 
rights,  in  which  those  people,  other  than  the  producer  or  the  dis- 
tributor of  the  film  have  the  right  to  sometimes  dictate  the  com- 
pass course  of  that  work  through  the  sequential  marketplaces  in 
which  it  goes. 

Our  works  for  hire  allows  the  producer  to  gather  in  his  one  hand 
all  of  the  rights  which  allows  them  a  disciplined  and  aggressive 
marketing  campaign  in  all  the  sequential  marketplaces.  The  fact  is 
that  the  moral  rights  system  that  is  now  the  nature  of  Europe 
hasn't  been  working  too  well  if  you  judge  by  the  success  of  the  cin- 


87 

ema  industries  in  Europe,  which  Europeans  will  tell  you,  somewhat 
unhappily,  is  in  decline. 

I  spent  the  last  week  meeting  with  European  producers  on  how 
to  revitalize  the  European  cinema.  Whereas  the  American  system 
of  works  for  hire  is  confirmably  and  singularly  the  most  successful 
in  all  the  world.  Therefore,  I  don't  think  there  is  any  rational  per- 
son that  would  want  to  inflict  a  system  on  this  country  that  doesn't 
seem  to  work  an3rwhere  else  in  the  world. 

But  under  copyright,  the  Europeans  are  bound  to  protect  us.  We 
are  a  member  of  Berne.  We  joined  in  1989.  I  wanted  us  to  join  a 
lot  earlier.  But  we  are  a  member  of  Berne  and  therefore  we  are  ac- 
corded the  protection  of  Berne.  And  if  this  copyright  term  extension 
is  granted,  as  I  pray  it  will  by  the  Congress,  then  we  will  be  on 
equal  footing  because  as  I  said  in  my  opening  statement,  the  Euro- 
peans are  bound  only  by  Berne,  which  is  life  of  the  author  plus  50 
years  or  70  years,  and  they  do  not  have  any  requirement  to  protect 
beyond  that,  though  they  do  have  the  right  to  lift  their  own  copy- 
right extension  far  beyond  Berne  as  they  have  done. 

So  all  we  are  asking  very  simply,  this  thing  shouldn't  be  too  com- 
plicated. This  is  an  economic  issue,  Mr.  Chairman.  It  is  a  crucial 
and  pivotal  economic  issue.  And  that  is  we  must  match  the  Euro- 
peans, else  we  are  at  a  severe  disadvantage.  It  is  very  simple.  And 
I  am  not  going  to  try  to  complicate  it  by  giving  you  any  arcane 
theories.     - 

Mr.  MOORHEAD.  I  have  a  question  here  for  either  Mr.  Richmond 
or  Mr.  Murphy.  Would  you  describe  the  types  of  film  archives  and 
film  preservation  activities  which  might  be  eligible  for  the  founda- 
tion, how  numerous  are  they  and  where  are  they  located? 

Mr.  Richmond.  In  terms  of  how  numerous  they  are,  there  are  ar- 
chives of  all  sizes  and  descriptions.  One  of  the  strengths  of  the 
American  archival  community  is  that  we  do  not  have  one  national 
archive.  The  national  collection,  so  to  speak,  is  held  by  literally 
hundreds  of  repositories  throughout  the  country,  which  are  geo- 
graphically dispersed  and  philosophically  diverse. 

The  types  of  activities  that  could  be  funded  by  the  foundation,  I 
can  imagine,  several.  Certainly  the  funds  to  preserve  and  restore 
archival  collections  that  are  held  in  nonprofit  institutions  that  have 
historical  or  cultural  importance.  Funds  to  catalog  collections  so 
that  information  about  them  can  be  made  available  to  the  public. 
Obviously,  the  public  can't  have  effective  access  to  this  heritage  of 
theirs  if  they  do  not  know  what  is  there. 

One  of  the  major  new  shifts  in  film  preservation  community  is 
the  emphasis  on  storage.  It  is  no  longer  simply  a  question  of  pre- 
serving a  film  by  doing  laboratory  work.  We  recognize  now  the 
films  have  to  be  stored  under  very  good  temperature  and  humidity 
control  in  order  to  make  sure  that  they  can  last  as  long  as  possible. 
So  I  could  certainly  see  this  foundation  working  cooperatively  with 
others  to  help  try  to  establish  regional  storage  repositories  where 
many  archives  from  a  region  could  place  their  collections  under  ar- 
chival conditions. 

I  think  one  of  the  big  areas  would  be  trying  to  make  the  Amer- 
ican film  heritage  more  accessible  to  people  by  cataloging  is  one 
way,  and  the  striking  of  reference  prints  and  access  copies.  And 
even  for  collections  that  are  of  special  educational  interest,  the 


88 

digitizing  of  collections  so  they  can  be  made  available  over  the 
Internet.  Those  would  be  some  of  the  possibilities. 

Mr.  MOORHEAD.  My  time  has  expired.  The  ranking  minority 
member  of  the  full  Judiciary  Committee,  John  Conyers,  is  here 
today.  He  represents  a  district  near  Detroit  and  has  been  very  ac- 
tive in  these  issues.  John  Conyers. 

Mr.  Conyers.  Thank  you.  And  good  morning,  Mr.  Chairman  and 
members  of  the  committee  and  my  friends  on  the  panel  and  the  la- 
dies and  gentlemen  of  interest  who  are  here  in  this  courthouse  this 
morning. 

I  am  so  pleased  to  be,  by  virtue  of  being  the  senior  member  of 
Judiciary,  a  member  on  all  of  the  subcommittees.  And  this  one  is 
my  favorite  because  it  is  the  most  farflung  in  terms  of  its  oper- 
ation. 

In  terms  of  shoring  up  intellectual  property  and  looking  at  the 
international  questions,  we  have  gone  from  Beijing  to  Xian  to 
Guangzhou  to  Seoul,  but  it  took  us  coming  to  Pasadena  to  find  out 
that  there  was  a  south  Pasadena.  And  not  only  one  Grand  Street, 
but  two,  which  made  for  an  interesting  diversion  as  we  roamed  the 
Nation  and  sometimes  the  world  in  terms  of  these  very  important 
intellectual  questions. 

But  I  am  here.  And  all  is  well,  here.  I  think  this  is  a  tremendous 
subcommittee  and  a  very  important  part  of  the  Judiciary  Commit- 
tee. The  fact  of  the  matter  is  that  under  the  new  leadership,  fre- 
quently many  of  the  issues  that  are  subcommittee  issues  become 
full  committee  issues.  And  so  as  you  look  upon  us  as  guardians  of 
American  intellectual  property,  don't  forget  that  we  also  have  to 
deal  with  questions  of  how  many  automatic  weapons  should  be  al- 
lowed in  the  United  States  of  America;  what  should  we  do  with  flag 
burners,  if  there  are  any  and  if  they  are  conducting  their  horrible 
activities;  how  much  damages  can  be  awarded  under  civil  disputes; 
and  then,  of  course,  these  great  questions  of  culture  that  bring  us 
to  our  subject  matter  today.  Two  measures  that  are  actually  rel- 
atively simple  in  terms  of  the  issues  that  are  confronting  us. 

I  see  all  of  these  things  moving  in  the  course  of  a  great  supporter 
of  our  culture  and  music,  in  particular,  as  one  who  came  on  the 
scene  when  the  Vietnam  issue  was  dividing  the  Nation,  when  the 
civil  rights  movement  was  nascent  and  began  to  build.  And  there 
was  a  young  man  with  Lyndon  Johnson  named  Valenti  and  a 
young  man  with  Dr.  King  named  Conyers.  And  we  both  wove  a  web 
of  interrelationships  that  have  spanned  some  31  years,  as  I  recall 
it. 

And  it  has  been  interesting  because  the  basis  of  all  our  activity 
here  in  this  committee  is  essentially  based  on  a  constitutional 
premise  primarily  embodied  in  the  first  amendment;  this  thing 
called  freedom  of  expression,  this  thing  called  the  right  to  dissent. 
And  they  have  come  together  in  a  very  curious  way. 

And  the  more  I  examine  the  Constitution  and  the  laws  of  this 
country,  the  more  I  realize  that  these  laws  don't  just  hang  out 
there  by  themselves.  That,  in  fact,  the  laws  give  the  framework  for 
people,  government  leaders,  frequently  fueled  by  public  opinion,  to 
do  things  and  make  decisions  within  a  constitutional  framework 
that  have  rather  large  ramifications. 


89 

And,  so,  we  come  here  today  to  talk  about  the  film  industry  and, 
you  know,  history  is  one  of  those  things  that  can  frequently  be 
short-lived.  The  French  made,  to  me,  some  of  the  most  initial  and 
profound  developments  in  the  history  of  cinematography.  But  there 
was  something  in  the  creative  force  in  this  country  that  I  argue 
was  embedded  in  the  first  amendment,  that  allowed  a  creativity 
that  would  not  let  culture  become  a  department  within  a  govern- 
ment. 

And  that  energy,  that  unlimitedness  that  is  here  in  this  country, 
quickly  moved  us  ahead,  not  just  in  movies,  but  in  all  the  arts,  the 
literature,  the  languages. 

And  so  today,  we  are  premier.  But  it  was  not  just  a  given  that 
it  started  off  like  that.  To  me,  I  think  there  is  a  constitutional 
nexus  that  this  committee,  of  all  committees  in  the  Congress,  is 
bound  to  observe  and  relate  to  every  now  and  then. 

And  so,  I  am  happy  to  be  here  now  because  the  questions  are  not 
as  easy  as  they  used  to  be  in  another  generation,  Mr.  Valenti.  We 
are  now  torn  between  the  first  amendment  and  some  very,  very 
delicate  questions.  How  obscene  is  "Pulp  Fiction,"  and  as  great  an 
art,  and  what  if  anything  can  or  should  we  do  about  it?  And  what 
about  gangster  rap?  Want  to  play  it  for  your  4-year-old  son? 

And  so  we  come  here  now  caught  up  in  new  and  more  difficult 
constitutional  questions  at  the  very  moment  that  we  are  moving 
now  into  a  more  technical,  a  more  technological  era  than  ever  be- 
fore where  all  of  our  telecommunications,  our  digital,  our  TV,  our 
telephones,  begin  now  to  interact  in  new  and  powerful  ways  that 
will  require  us  to  now  go  back  and  examine  some  of  the  very  basic 
premises  that  we  have  nurtured  for  all  these  years. 

And  so  I  close  my  comments  observing  that  very  much  with  us, 
today,  Carlos,  is  the  spirit,  and  the  former  leadership  of  Bob  Kas- 
tenmeier,  who  for  more  than  a  decade  led  and  inspired  this  com- 
mittee. 

As  a  matter  of  fact,  he  did  such  a  good  job,  that  if  you  weren't 
on  the  Intellectual  Property  Subcommittee  you  left  it  to  Kasten- 
meier  and  Moorhead  and  later  on  Berman  and  let  it  go  at  that.  The 
rest  of  the  Judiciary  Committee  took  a  pass  on  these  questions. 

But  we  can't  do  it  anymore.  And  the  reason  we  can't  do  it  and 
because  a  lot  of  my  wonderful  new  leaders  in  government  are  tell- 
ing us  that  venerable  institutions  no  longer  need  to  exist.  I  am  told 
on  one  hand  that  we  don't  need  to  worry  about  antitrust  activity 
in  the  department  and  then  I  am  told  on  the  other  that  the  very 
agency  they  would  cede  it  to,  the  FCC,  doesn't  need  to  exist.  You 
only  need  an  executive  office  there.  Who  needs  Federal  Commu- 
nications Commissions? 

Well,  I  think  we  need  both.  And  I  am  not  one  of  those — and 
maybe  I  am  one  of  the  old  dinosaurs  around  the  104th,  but  I  am 
not  one  of  those  that  rush  to  this  dismantling  process  with 
unconcealed  glee.  I  think  it  ought  to  be  a  very  careful,  deliberate, 
well-thought-out  approach.  And  now  that  we  are  out  of  that  forced 
march  called  100  days,  we  are  now  able  to  give  some  thought  and 
dignity  to  the  proceedings  in  the  Congress.  And  this  committee, 
under  our  chairman,  I  know  is  committed  to  that. 

As  a  matter  of  fact,  some  consider  it  a  weakness;  his  fairness  is 
too  fair,  I  think  it  is  a  strength.  And  I  think  it  keeps  this  commit- 


90 

tee  in  the  nonpartisan  and  yet  forward-thinking  way  that  is  de- 
manded of  the  times  on  the  subject  of  intellectual  property. 

When  we  got  back  from  China,  the  first  announcement  that  we 
received  was  that  after  long  last,  the  movie  industry  would  be  able 
to  open  an  office  in  Beijing.  We  think  that  we  may  have  had  some- 
thing to  do  with  that. 

We  were  looking  in  Asia,  another  huge  area  of  our  concern,  for 
the  enforcement  of  the  intellectual  property  agreements  that  they 
have  signed.  You  know,  signing  them  are  great  days  and  great 
sound  bytes,  but  who  is  going  to  enforce  intellectual  property  rights 
in  a  country  that  has  never  heard  of  the  subject  in  their  judicial 
system  before? 

And,  thankfully,  we  have  a  provision  in  which  we  will  help  train 
and  that  they  are  agreeable  to  that  sort  of  thing. 

And  so,  this,  as  you  can  tell,  is  a  committee  of — ^that  I  approach 
with  great  enthusiasm.  The  concurrent  resolution  on  jazz  has  al- 
ways been  one  of  my  great  delights.  The  movie  industry  which — 
most  Americans  consider  themselves  to  be  movie  authorities,  not 
just  movie  buffs  and  I  am  no  exception  to  that.  And  to  tour  lots 
and  see  African-Americans  working  on  stages  as  construction 
hands — I  remember  when  that  used  to  be  fought  bitterly,  year  after 
year,  how  to  get  some  black  carpenters  in  the  lots  in  Hollywood. 
And  you  can  walk  in  anywhere  now  and  look  around  and  they 
weren't  put  there  for  me.  It  wasn't  my  benefit.  I  wasn't  even  sup- 
posed to  have  been  on  one  lot  that  we  walked  into  last  night. 

To  see  African-American  vice  presidents  of  motion  picture  cor- 
porations is  a  brandnew  development  and  it  continues  the  thread 
that  two  guys  brought,  one  with  President  Johnson  and  one  with 
Martin  Luther  King,  over  30  years  ago. 

Thank  you,  Mr.  Chairman  for  allowing  me  so  much  time. 

Mr.  MOORHEAD.  Thank  you,  John. 

One  other  member  that  has  come  in,  he  went  to  the  wrong  court- 
house, which  is  understandable  because  there  are  several  here  in 
Pasadena.  But  he  is  probably  our  most  famous  member,  Sonny 
Bono  from  Palm  Springs,  CA,  the  freshman  Member  in  Congress, 
someone  who  has  had  a  fantastic  career  prior  to  coming  here. 
Sonny. 

Mr.  Bono.  Thank  you,  Mr.  Chairman.  I  will  keep  my  opening 
statement  brief.  Being  a  songwriter  and  coming  from  that  industry, 
there  were  always  inequities  that  were  hard  for  me  to  understand, 
first  initially  as  a  songwriter. 

I  didn't  know  why  the  Government  got  involved  in  a  song  at  all 
or  in  a  movie  at  all.  As  far  as  I  was  concerned,  I  wrote  the  song, 
or  somebody  else  did,  and  it  was  mine.  But  then  I  found  out  that 
I  could  only  have  it  for  25  years,  I  think,  or  26  years.  This  was  in 
1952  when  I  started  and  wrote,  "You  Bug  Me  Baby." 

And  if  you  missed  that  moment,  the  song  went  away,  and  it 
wasn't  yours  anymore  and  it  became  public  domain.  And  it  was  so 
strange.  It  is  a  very  interesting  business  because  a  lot  of  the  cre- 
ators now  are  kids,  and  they  grab  a  guitar  and  they  write  a  song, 
and  it  is  just  a  sound  to  them.  It  is  theirs.  And  that  song  becomes 
a  piece  of  art  later  on.  And  the  creator  never  suspects  sometimes 
that  that  will  become  a  piece  of  art  for  the  rest  of  life.  And  so  to 


91 

him  it  is  just  a  little  song  that  he  wrote  for  his  girlfriend  or  what- 
ever. 

And  so  you  have  somebody  who  is  really  not  as  serious  as  other 
people  who  realize  the  commercial  aspect  of  this.  So  you  have  got 
a  songwriter,  then  you  have  got  the  publishers,  as  Mr.  Murphy  was 
talking  about,  who  are  aware  of  the  commercial  value  of  a  song.  So 
if  they  hear  a  song,  they  hear  the  value,  the  commercial  value  of 
a  song.  And  their  input  is  good.  And  they  direct  it  in  a  proper  way 
with  more  maturity. 

But  it  goes  from  a  little  song  to  a  commercial  venture  and  then 
to  a  piece  of  art.  And  during  this  travel,  it  becomes  public  domain 
or  under  a  legislative  body  that  can  direct  where  it  goes  and  how 
it  goes  and  what  rights  you  have  after  you  have  created  it. 

So,  I  have  a  few  questions  that  I  want  to  ask.  The  public,  and 
even  this  committee — and  I  certainly  don't  mean  that  arrogantly — 
sometimes,  unless  you  are  a  performer  and  unless  you  are  a  writer, 
there  are  more  details  at  that  level  than  anyone  else  is  able  to  un- 
derstand. 

And  one  of  the  issues  I  want  to — ^Mr.  Murphy  gave  a  beautiful 
speech  about  publishers  and  I  presume  you  represent  publishers; 
is  that  correct?  I  guess  my  question  to  you  would  be  what  right 
does  the  songwriter  have  once  he  has  designated  it  to  a  publisher 
as  far  as  reproductions  of  his  song? 

Say  some  group  wants  to  do  his  song  and  he  doesn't  care  for  this 
group  or  he  doesn't  think  that  his  piece  of  art  is  represented  prop- 
erly, but  the  publisher  sees  the  commercial  side.  What  are  the 
rights  of  the  songwriter? 

Mr.  Murphy.  Mr.  Bono,  I  think  that  a  lot  depends  upon  the  con- 
tractual understanding  the  songwriter  entered  into  with  the  par- 
ticular publisher. 

Mr.  Bono.  And  let  me  just  stop  you  there  and  let  me  bring  out 
a  point.  And  the  point  there  that  I  want  to  go  back  to,  the  contrac- 
tual rights,  you  have  creators  now  that  are  18,  17,  so  they  enter 
into  a  contract.  And  once  they  enter  into  that  contract,  they  are 
stuck  to  that,  you  know.  And  that  goes  on  for  life.  It  is  unchange- 
able. 

And  I  guess  I  want  to  raise  the  issue  of  equity  between  the  song- 
writer and  the  publisher.  And  now  we  will  go  back  to  what  does 
the  songwriter  have  to  say  if  somebody  records  his  song  and  de- 
means his  song  or  does  his  song  in  a  demeaning  fashion,  what 
rights  does  the  artist  have? 

Mr.  Murphy.  In  terms  of  the  sale  of  recordings,  as  you  know,  Mr. 
Bono,  there  is  a  compulsory  mechanical  license  in  America.  And  as 
such,  under  the  compulsory  license,  anyone,  after  the  first  use — ^you 
understand  that  under  the  licensing  system  that  has  been  put  to- 
gether by  Congress,  the  first  use  has  always  been  reserved  to  the 
songwriter  and  to  the  publisher — the  songwriter  can  prevent  any 
use,  the  first  use.  Once  that  has  been  done,  performed  and  made 
available  to  the  public,  the  second  and  subsequent  use  then  fall 
under  the  compulsory  mechanical  license.  And  as  such 

Mr.  Bono.  Is  that  the  songwriter's  control  when  he  records  it  for 
the  first  time  basically  is  what  you  are  saying,  correct? 

Mr.  Murphy.  That  is  correct.  The  second  time,  once  it  has  been 
recorded  and  made  available  to  the  public,  then  other  individuals 


92 

can  come  along  and  record  your  song.  And,  of  course,  under  the 
compulsory  license,  the  song  shouldn't  be  changed  in  any  demon- 
strable way.  Because  there  are  some  changes  that  are  made  to  the 
song,  but  it  shouldn't  be  demonstrable.  No  one  should  change  the 
lyrics  or  the  original  melody  in  any  way. 

There  are  certain  liberties  that  are  taken  in  the  arrangement  of 
a  song.  It  can  be  done  electronically  as  opposed  to  an  original  piano 
version  or  instrumental  version.  Generally  speaking,  that  is  the 
right  within  the  scope  of  the  compulsory  license.  One  cannot 
change  the  lyrics  of  your  song.  One  cannot  in  any  way  change  the 
song — ^the  writer  owns  the  song  and  they  can't  change  it.  If  they 
do,  there  is  recourse  under  the  law  and  you  can  go  before  the 
courts  and  stop  that. 

Mr.  Bono.  Right.  But  let's  go  back  to  that.  You  can  have  your 
song  demeaned  in  other  ways  then  just  the  lyrics  altered.  And  that 
is  in  the  hands  of  the  publisher  only;  correct? 

Mr.  Murphy.  I  am  not  sure  I  understand  what  you  mean. 

Mr.  Bono.  I  am  saying  if  another  artist  takes  the  song  and  it  dis- 
pleases the  creator  of  that  song  and  he  would  prefer  not  to  have 
that  money  or  the  song  recorded  by  that  person  if  they  don't  record 
it  in  the  fashion  that  it  was  written  and  the  intention  is  somewhat 
demeaning,  does  he  have  any  rights  or  is  it  to  the  discretion  of  the 
publisher  only  to  say,  yes,  you  can  record  that  or,  no,  you  can't 
record  that? 

Mr.  Murphy.  Again,  under  the  terms  of  the  compulsory  license, 
anyone  can  record  a  song.  I  can  think  of  some  times  when  I  was 
a  publisher  that  the  original  creators  didn't  particularly  like  a  ver- 
sion that  was  published,  but  under  the  U.S.  act  and  regulations, 
that  version  had  to  go  out.  I  am  talking  about  a  recorded  version. 
This  is  not  a  revision  of  lyrics  or  text. 

But  the  recording  companies,  as  you  know,  do  sign  up  an  artist 
and  do  make  the  selection  of  that  song.  And  of  course,  once  they 
make  that  selection  they  have  a  right  to  put  it  out  as  long  as  it 
doesn't  in  any  way  change  the  original  constitution  of  that  song. 

Mr.  Bono.  Here  is  what  I  would  like  to  suggest  to  you,  because 
we  are  getting  into  rhetoric.  After  a  song  is  turned  over  to  the  pub- 
lisher, he  becomes  more  or  less  the  owner  of  that  song  and  really 
the  fate  of  that  song  is  up  to  the  publisher. 

And  when  we  talk  about  this  legislation,  since  we  are  going  to 
have  legislation  and  I  understand  you  may  get  involved  in  that  leg- 
islation, one  of  the  bones  of  contention  that  I  have  as  a  songwriter 
is  that  you  have  nothing  to  say  about  your  song  after  you  write  it 
and  after  you  turn  it  over  to  a  publisher.  So  the  publisher  has  all 
of  the  say-so  from  that  point  forward. 

So,  if  someone  wants  to  take  a  song  and  mock  you  with  that  song 
and  use  it  to  debase  you,  I  guess  that  is  the  word,  they  can.  They 
have  to  be  a  little  clever,  but  they  can.  But  if  it  represents  dollars 
to  the  publisher,  the  publisher  might  let  it  fly. 

Anyway,  I  think  that  one  consideration  we  have  to  talk  about, 
since  legislation  is  involved  here,  is  that  the  songwriter — the  cre- 
ator should  have  as  much  rights  as  the  publishers.  And  they  don't 
at  this  point  in  time  because  hypothetically  they  signed  a  contract 
and  it  could  have  been  when  they  were  very,  very  green  and  didn't 
know  a  thing  about  the  business. 


93 

And  so  I  would  urge  you,  because  I  will  be  active  in  that  area, 
to  let  the  songwriter  have  a  say  so.  That  has  occurred  with  me  sev- 
eral times  and  there  was  nothing  I  could  do  about  it.  On  the 

Mr.  Murphy.  Mr.  Bono,  I  would  be  happy  to  talk  to  you  and  give 
you  or  any  songwriter  any  advice  that  I  can.  Our  organization 
stands  ready  to  help  songwriters  in  this  area  and  would  be  happy 
to  do  this,  and  we  do.  That  is  what  our  organization  does.  And  we 
would  be  pleased  to  review  that. 

Mr.  Bono.  I  hope,  again,  if  we  are  going  to  go  with  legislation, 
that  we  recognize  the  creator  of  the  product.  It  is  kind  of  like  a 
painting  belongs  to  the  painter,  but  the  song  gets  taken  away  from 
the  writer.  And  I  think  it  is  inverted  in  some  degree.  So  I  think 
that  equity  should  be  worked  out. 

As  far  as  archives  are  concerned,  wherever  the  Government  con- 
tribution is,  is  that  public  domain  or  is  that  for  personal  use?  I 
mean,  does  it  belong  to  a  movie  company?  Does  it  belong  to  a  pri- 
vate company  or  is  it  all  public  domain? 

Mr.  Richmond.  I  am  not  quite  sure  I  understand  the  question. 
I  think  I  do.  The  way  that  the  House  bill  1734,  title  II  would  set 
up  the  foundation,  the  foundation's  primary  role  would  be  to  work 
with  the  film  community  to  raise  private  sector  funding  and  the 
foundation  would  be  eligible  to  match  that  funding  with  a  limited 
amount  of  Federal  funds  and  then  those  funds  would  be  given  out 
as  grants  to  nonprofit  institutions  throughout  the  country  for  spe- 
cific projects. 

Mr.  Bono.  Are  any  of  those  preservations  for  private  companies? 

Mr.  Richmond.  No,  the  grants  would  be  given  to  nonprofit  insti- 
tutions for  specific  projects.  None  of  the  funding  would  go  to  pay 
for  any  overhead  on  a  project.  And  the  foundation  would  focus  on 
what  has  been  described  as  orphan  films,  films  that  are  held  in  the 
public  trust  by  public  institutions. 

The  Hollywood  studio  films,  I  think  we  all  agree,  and  the  Holly- 
wood community  certainly  has  agreed,  are  the  responsibility  of  the 
studios  to  preserve. 

Mr.  Bono.  I  just  think  if  they  are  privately  held,  then  that 
should  be  up  to  that  private  person.  My  time  is  up.  Thank  you. 

Mr.  MOORHEAD.  Mr.  Howard  Berman. 

Mr.  Berman.  Thank  you  very  much,  Mr.  Chairman.  How  did  the 
ninth  circuit  ever  get  to  Pasadena? 

Mr.  Conyers.  Political  power. 

Mr.  Berman.  It  is  interesting  hearing  Mr.  Bono's  questions,  or 
reaction,  the  different  ways  we  look  at  government.  He  sees  it, 
after  I  wrote  my  first  song,  how  come  the  Government  is  only  let- 
ting me  keep  that  song  for  22  or  25  years.  And  I  am  thinking,  the 
Government  is  protecting  me  from  all  the  thieves  who  want  to  steal 
that  song  for  25  years.  And  here  is  a  useful  role  for  the  Govern- 
ment, trying  to  protect  the  creative  rights  of  Sonny  Bono  and  oth- 
ers. And,  in  fact,  on  several  occasions  have  extended  that  period  of 
time  and  now  we  are  proposing  to  extend  it  further. 

The  Government  is  pla3dng  the  role  of  protecting  the  rights  of  the 
individual  creator  against  the  people  who  would  want  to  steal  his 
or  her  property.  And  so  I  guess  it  is  all  how  you  look  at  it. 

Mr.  Bono.  Will  the  gentleman  yield? 

Mr.  Berman.  Sure. 


9.'^.9R7     Qf?  -  4 


94 

Mr.  Bono.  There  is  a  price  to  pay  for  that  protection,  to  give  up 
your  property.  I  mean,  a  song  is  like  a  chair.  PubHc  domain  means 
you  don't  get  the  money  anymore. 

Mr.  Berman.  It  is  the  Constitution,  the  legislature,  and  the  judi- 
cial branch  that  gave  meaning  to — well,  we  are  getting  back  to  the 
state  of  nature  in  a  way,  but  gave  meaning  to  this  notion  of  your 
exclusive  right  to  control  and  exploit  your  property. 

And  I  guess  we  could  take  Mr.  Murphy's  suggestion  of  a  tem- 
porary moratorium  and  just  make  a  permanent  moratorium  on  the 
expiration  of  copyrights.  At  some  point,  you  have  to — at  some  point 
the  property  right  is  going  to  end.  I  mean,  I  haven't  heard  any  seri- 
ous discussion  that  generations  after  you  have  created  it 

Mr.  Bono.  Why  can't  the  family  keep  it?  It  is  an  asset? 

Mr.  Berman.  How  far  down? 

Mr.  Bono.  Like  a  house  or  a  car  or  like  a  painting,  like  any 
asset,  it  should  be  whoever  created  it. 

Mr.  Berman.  The  Founding  Fathers  said  this  was  in  order  to  en- 
courage you  in  your  work.  For  a  limited  amount  of  time,  you  would 
be  protected.  We  are  talking  about,  and  I  support  the  extension. 

Mr.  Bono.  I  would  like  to  have  the  choice  of  the  protection. 

Mr.  Berman.  Well,  I  think  you  will  need  a  constitutional  amend- 
ment to  do  that. 

But  I  would  like  to  ask  just  a  few  questions  of  the  panelists. 
First,  Jack  Valenti,  when  you  deal  with  a  motion  picture — I  know 
this  could  drift  into  other  issues  that  you  are  not  here  to  testify  on, 
and  I  don't  mean  it  to — what  is  the  life  of  the  author?  Is  it  the  stu- 
dio that  owns  the  copyright?  Is  it  the  producer  who  produces  it? 
What  is  the  life  of  the  author? 

Mr.  Valenti.  The  answer,  Mr.  Congressman,  is  it  is  not  life  of 
the  author  under  works  for  hire.  It  would  be  95  years,  period. 

Mr.  Berman.  Ninety-five  years.  Because  it  is  this  kind  of 

Mr.  Valenti.  Under  the  works-for-hire  concept,  one  can  be  a  per- 
son or  one  can  be  an  enterprise. 

Mr.  Berman.  Persons  under  present  law  get  life  of  the  author 
plus  50 

Mr.  Valenti.  Right  now  it  is  50  years.  Under  the  European 
Union,  it  is  life  plus  70,  which  is  the  trampoline  from  which  this 
whole  hearing  springs,  in  my  judgment. 

Mr,  Berman.  What  is  the  European  Union's  directive  doing  with 
respect  to  motion  pictures?  How  is  it  changing  existing  law? 

Mr.  Valenti.  It  would  mean  that  a  motion  picture  that  is  in  1 
of  the  15  member  States  of  the  European  Union  produced  in  1  of 
those  member  States,  would  have  a  life  expectancy  in  the  market 
of  thorough  protection  by  the  government  for  the  life  of  the  author 
plus  70  years.  It  goes  into  effect 

Mr.  Berman.  I  am  confused  about  this  as  to  motion  pictures,  the 
life  of  the  author. 

Mr.  Valenti.  In  Europe  there  is  a  different  concept. 

Mr.  Berman.  You  don't  have  work  for  hire  in  Europe? 

Mr.  Valenti.  They  have  what  they  call  moral  rights.  It  comes 
from  the  French  phrase,  droit  morale,  which  gives  the  right  to  the 
author  under  a  theory  called  the  auteur  theory.  In  Europe  it  is  the 
director  who  has  the  authority  over  that  motion  picture,  no  matter 


95 

who  invested  money  in  it  or  who  produced  it,  et  cetera.  It  is  a  dif- 
ferent concept  than  ours. 

Mr.  Berman.  I  understand.  And  I  am  just  trying  to  translate 
that  into  the  different  ways  we  treat  copyright  protection.  In  the 
United  States  under  the  1976  law,  then,  a  motion  picture  is  pro- 
tected for  a  set  period  of  years,  which  is  what?  How  many  years 
under  existing  law? 

Mr.  Valenti.  Correct.  Fifty  now. 

Mr.  Berman.  Seventy-five  years? 

Mr.  Valenti.  Excuse  me.  I  am  sorry;  75,  because  you  are  going 
20  more  years  in  order  to  match  the  Europeans.  Forgive  me.  I 
erred.  It  is  75  years. 

Mr.  Berman.  And  the  chairman's  bill  would  extend  that  20  addi- 
tional years  in  the  case  of  motion  pictures? 

Mr.  Valenti.  Correct.  Correct. 

Mr.  Berman.  Well,  20  additional  years  in  all  cases,  but  that  is 
how  it  would  work  here.  From  75  to  95. 

Just  on  the  issue,  since  there  is  nobody  testifying  against  the 
copyright  extension,  the  statement  that  works  in  the  public  domain 
don't  get  effectively — clearly,  I  am  for  the  bill.  I  think  the  trade  ar- 
guments are  compelling  and  I  think  the  notion  of  rewarding  the 
creator  and  thereby  incentivizing  the  creator  and  the  creator's  heirs 
for  a  reasonable  period  of  time,  not  for  centuries,  but  for  a  reason- 
able period  of  time,  argues  for  the  bill  and  that  is  why  I  am  a  co- 
sponsor  of  it. 

But  one  of  the  arguments  being  given  by  some  of  you  is  that  in 
addition  works  that  go  into  the  public  domain  lose  value  and  don't 
get  exploited.  But  books  that  have  gone  in  the  public  domain,  all 
kinds  of  classical  music  is  in  the  public  domain.  People  have  found 
it  economical  to  publish  them  and  to  produce  the  sheet  music  from 
which  symphonies  in  the  public  domain  are  performed  and  re- 
corded and  sold. 

I  mean,  there  is  still  value  to  a  lot  of  those  works.  How  would — 
am  I  wrong  about  that? 

Mr.  Valenti.  I  don't  want  to  speak  about  sheet  music.  I  will 
leave  that  to  Mr.  Murphy  and  the  music  I  will  leave  that  to 
Marilyn. 

In  the  movie  business,  let  me  give  you  the  argument  that  I  have 
read  in  several  papers  which  are  in  opposition,  mostly  by  academ- 
ics. And  I  haven't  read  any  paper  by  anybody  who  is  a  professional 
in  the  business  who  is  opposed  to  this. 

The  academic  argument  is  that,  one,  the  customer  benefits  be- 
cause he  gets  these  public  domain  properties  cheaper.  The  answer 
is  let's  take  "It's  a  Wonderful  Life"  in  the  public  domain.  I  pay  $52 
a  month  for  cable,  and  when  it  is  shown  on  cable,  my  cable  bill  is 
not  reduced  1  cent.  When  it  is  shown  on  television,  the  television 
station  charges  the  advertiser  the  same  rate  that  he  charges  him 
for  the  hour  previously,  if  it  is  in  fringe  time. 

There  is  no  economic  benefit  to  the  consumer  that  I  have  been 
able  to  figure  out.  I  have  read  a  paper  by  Mr.  Gomery  of  the  Uni- 
versity of  Maryland  in  which  he  is  talking  about — he  made  his 
principal  pitch  on  silent  film  and  if  you  had  public  domain,  silent 
films  would  suddenly  become  very  popular.  But  even  the  ones  that 
are  in  public  domain  now,  the  distributors  of  public  domain  films 


96 

are  fortunate  and  happy  to  sell  a  few  hundred  copies.  So  we  are 
talking  about  an  infinitesimal  amount  in  the  marketplace. 

The  fact  is,  Mr.  Berman,  that  a  picture  that  is  in  public  domain, 
unless  it  is  a  unique  thing,  like  "It's  a  Wonderful  Life",  which  of 
the  500,000  films  on  deposit  at  the  Library  of  Congress,  stands  out 
singularly,  nobody  invests  money  to  enhance  that  film. 

Beethoven  is  different.  I  presume  you  can  put  out  some  sheet 
music  on  Beethoven  or  make  a  copy  of  the  Beethoven  symphony. 
But  when  you  are  mucking  around  with  a  negative  on  which  you 
have  to  spend  hundreds  of  thousands  of  dollars  on  that  negative 
and  knock  off  the  prints  on  that,  too,  you  are  talking  about  a  siz- 
able investment  and,  therefore,  few  people  are  willing  to  make  it. 
That  is  why  some  of  these  public  domain  prints  become  so  haggard 
after  a  while. 

I  have  seen  some  "It's  a  Wonderful  Life"  renditions  on  television 
that  I  think  it  is  a  disgrace  to  put  on  the  air,  with  lines  across  it 
and  the  print  is  in  a  debilitated  form. 

Mr.  Murphy.  Mr.  Berman,  two  examples  that  come  to  mind 
about  the  public  domain  and  its  value — what  it  means.  When  you 
think  of  what  happens  in  the  Soviet  Union  or  in  any  country  where 
there  is  absolutely  no  control  over  copyrighted  works,  you  don't 
have  any  products  available,  be  it  classical  music  or  anything.  Peo- 
ple will  not  invest  where  there  is  no  stability  or  no  copyright  base. 

Where  the  copyright  base  is  there  and  there  is  protection  for 
copyright,  people  are  willing  to  invest  and  they  make  the  products 
available.  It  is  truly  that  simple.  I  was  president  of  G.  Schirmer 
Music  Co.  before  I  came  to  head  up  NMPA  and  the  Harry  Fox 
Agency  and  G.  Schirmer  was  the  leader  in  the  world  in  producing 
classical  music  and  educational  music. 

And  in  our  repertoire  we  had  a  lot  of  classical  music  and  we  had 
a  great  deal  of  difficulty  competing  with  China  and  the  Philippines 
and  places  where  they  would  produce  product  and  ship  it  on  into 
the  United  States  from  Asia  where  it  was  cheaper  to  manufacture, 
so  we  didn't  do  it. 

What  we  did  do  is  things  that  were  copyrighted  and  often  the 
copyrighted  works  are  what  actually  carried  our  expenses  to  put 
out  works  which  we  wanted  to  have  for  a  full  repertoire.  So  you 
would  bring  the  classical  music  out,  but  also  hopefully  get  some 
royalties  from  other  works  from  ASCAP  and  BMI  from  some  of  our 
composers. 

Mr.  Berman.  Let  me  make  sure  I  understand  how  the  whole 
copyright  law  works.  When  Toscanini  conducts  and  some  record 
company  records  a  Beethoven  symphony  which  is  in  the  public  do- 
main, is  that  Toscanini  recording  conducting  the  New  York  Phil- 
harmonic in  a  Beethoven  symphony,  is  that  a  copyrightable  record? 

Mr.  Murphy.  No,  sir.  No,  it  is  not  copyrightable.  You  may — 

Mr.  Berman.  Somewhere,  a  record  company  over  and  over  and 
over  again  has  decided  that  notwithstanding,  that  it  is  not  pro- 
tected, notwithstanding  that  there  is  value  in  going  out 

Mr.  Murphy.  Have  you  copyrighted  "Circle  P,"  that  is  a  copy- 
rightable work  as  a  phonogram.  "Circle  C," — ^the  music  itself— is 
not  copyrightable  unless  you  do  an  arrangement  of  that  work,  there 
may  be  rearrangements  of  a  public  domain  classical  work  which 


97 

are  copyrightable.  Although  the  preponderance  of  classicals  work 
that  is  out  there  for  "Circle  C"  is  in  public  domain. 

Ms.  Bergman.  If  I  may,  I  think  that  you  stack  the  deck  a  little 
bit  when  you  go  to  Beethoven.  I  think  the  earlier  example  that  Mr. 
Murphy  gave  of  the  Samuel  Barber  piece  is  a  better  example  of  a 
work  that  was  created  some  25  or  28  years  before  it  found  an  audi- 
ence. 

Now,  that  is  very  common  in  the  world  of  serious  music.  I  don't 
like  to  use  the  term  "serious  music."  It  makes  our  music  sound  friv- 
olous, but  I  mean  classical  music.  But  it  also  happens  in  popular 
music  where  one  never  knows  when  a  piece  of  music  is  revived,  a 
song  that  either  had  a  life  at  one  time  and  expired  and  then  is  re- 
vived by  a  contemporary  artist  and  becomes  a  hit. 

I  submit 

Mr.  Berman.  But  the  problem  for  that  is  the  unfairness  to  the 
original  creator  and  his  heirs. 

Ms.  Bergman.  That  is  the  point. 

Mr.  Berman.  It  is  not  that  that  won't  happen.  No  works  will  dis- 
appear necessarily. 

Ms.  Bergman.  But  your  question  went  to  the  promotion.  Who 
then  is  going  to  print  sheet  music?  Who  then  is  going  to  work  on 
the  song  from  the  creator's  point  of  view?  If  you  are  depending 
upon  the  creator  himself  or  herself,  it  might  not  be  economically 
feasible.  It  may  be  the  one  song  in  somebody's  catalog  that  earns 
them  some  money  long  after  the  copyright  is  gone.  You  never  know 
where  and  when  an  older  work  suddenly  gets  a  second  life. 

And  I  think  this  goes  to  the  heart  of  the  whole  concept  of  intel- 
lectual property  as  property.  And  I  certainly  agree  with  Congress- 
man Bono  that  at  the  heart  of  that  argument,  property  is  the  oper- 
ative word  here  and  it  is  no  less  real  because  it  comes  from  the  fac- 
tory of  someone's  mind  as  this  cup  that  somebody  made,  which  is 
not  biodegradable,  may  I  add. 

But  I  don't  think  that  a  piece  of  intellectual  property  should  be 
biodegradable  either.  And  I  think  why  we  are  here  today  is  pre- 
cisely what  you  were  talking  about  to  enhance  the  right  of  the  cre- 
ator and  extend  the  length  of  the  protection  of  the  work. 

Mr.  Berman.  And  put  the  Government  on  the  side  of  enforcing 
those  rights. 

Ms.  Bergman.  Exactly.  Exactly.  Exactly. 

Mr.  Berman.  Thank  you,  Mr.  Chairman. 

Mr.  Moorhead.  Thank  you,  Mr.  Berman.  Our  next  questioner 
would  be  Xavier  Becerra. 

Mr.  Becerra.  Remember  to  say  the  H,  Mr.  Chairman.  Xavier. 

Let  me  ask  a  question  to  anyone  on  the  panel  who  wishes  to  try 
to  answer  this.  Back  in  1976,  when  we  did  alter  the  copyright  laws 
to  extend  them  for  the  20  years,  there  was  some  debate  about  who 
would  receive  the  right  to  that  extended  copyright. 

Ultimately,  the  right  was  given  to  the  owner  of  the  copyright  and 
not  to  the  author,  if  the  author  had  transferred  that  right  to  the 
present  owner,  the  publisher,  for  example. 

What  was  conceded  to  the  author  was  a  5-year  period  under 
which  the  author,  if  he  or  she  submitted  some  type — or  initiated 
a  termination  of  that  right,  could  then  during  that  5-year  gap,  get 
full  rights  to  that  copjn-ight. 


98 

I  just  realized  in  reading — in  preparing  for  the  hearing  that  the 
current  legislation  that  we  have  before  us,  H.R.  989,  doesn't  alter 
the  language  in  the  current  law  which  says  that  the  right  goes  to 
the  owner,  but  can  be  canceled  by  the  author  if  the  author  acts 
within  5  years,  the  time  under  which  the  right  would  expire  for  the 
possessor  of  the  copjn^ight. 

I  don't  know  if  that  was  an  oversight,  Mr,  Chairman,  on  the  part 
of  the  sponsors  and  the  cosponsors  of  the  legislation,  but  I  would 
be  interested  in  hearing  the  opinion  of  the  panel  as  to  whether  or 
not  we  should  be  providing  the  same  type  of  protection  to  the  origi- 
nal authors  of  that  work  that  we  provided  in  1976,  a  5-year  right, 
which  I  understand  in  many  people's  eyes  was  a  major  concession 
on  the  part  of  the  authors  since  no  one  bargained  for  an  additional 
20  years  back  in  1976.  And  I  suspect  the  same  thing  applies  now 
in  1995  that  no  author  or  current  owner  or  purchaser  of  that  copy- 
right bargained  for  an  additional  20  years. 

Mr.  Valenti.  I  cannot  speak  for  other  members  of  the  panel  be- 
cause there  is  a  difference  in  this  gossamer  sculpture  of  an  author. 
Marilyn  and  Alan  Bergman  are  authors.  They  write  their  songs. 
They  do  not  deploy  100  people  to  help  them.  I  guess  they  sit  in  a 
room  and  do  it  alone.  You  don't  sit  in  Hollywood  Bowl  when  you 
are  creating,  do  you? 

Ms.  Bergman.  No,  sir. 

Mr.  Valenti,  They  are  authors,  Samuel  Barber  is  an  author.  He 
wrote  a  s3miphony.  In  the  movie  business  we  are  the  only  art  form 
in  this  country  that  I  know  about  that  is  collaborative,  I  guess  a 
stage  show  would  be  the  same  thing, 

Mr.  Berman.  And  legislation  is. 

Mr.  Valenti.  It  is  a  collaborative  effort.  You  deploy  a  hundred, 
a  thousand  people  on  the  set.  And  who  is  the  author?  That  is  why 
the  author  in  the  motion  picture,  the  copyright  owner,  can  be  an 
enterprise  that  puts  the  money  together  and  organizes  the  entity. 

A  good  example,  tell  me  who  the  author  is  of  "Gone  With  The 
Wind"?  It  was  written  by  Margaret  Mitchell  and  the  book  was 
bought  by  David  O.  Selznik,  whereupon  he  hired,  count  them, 
seven  different  directors.  Hired  one,  they  get  on  the  set;  fired  him 
and  finally  brought  on  a  fellow  by  the  name  of  Victor  Flemming. 
He  finished  the  picture.  He  hired,  count  them,  over  20  writers. 

Mr.  Becerra.  Let  me  interject.  I  think  the  case  of  films  is  dif- 
ferent because  we  do  in  this  country  recognize  work  for  hire.  But 
in  the  case  of  those  works 

Mr.  Valenti.  1  will  withdraw  from  the  microphone. 

Mr.  Becerra.  I  am  more  interested,  I  guess  I  should  say,  in 
hearing  from  the  publishers  or  ASCAP,  those  people  who  represent 
both  the  original  authors  and  those  who  purchase  the  rights  to  that 
copyright;  in  many  cases  the  publishers. 

Should  we  be  providing  the  same  type  of  extension,  even  if  it  is 
the  minimal  extension  of  5  years,  to  try  to  terminate  that  right 
that  we  provided  back  in  1976?  As  I  understand  it,  correct  me  if 
I  am  wrong,  the  legislation  that  we  have  before  us  does  not  alter 
section  304(c)3,  which  provided  for  that  5-year  time  period  within 
which  to  revoke  the  transfer. 

Ms.  Bergman.  My  counsel  just  handed  me  a  note  which  says  be- 
cause the  bill  doesn't  alter  the  existing  termination  right,  it  still 


99 

would  be — and  I  cannot  read  this  word.  Looks  like  "placed"  and  the 
author,  if  he  exercised  the  termination  right,  would  recover  the 
copyright  for  an  additional  20  years.  It  was  considered  in  drafting 
the  bill. 

Mr.  Becerra.  And  maybe  your  counsel  could  come  to  the  mike. 
As  I  read  section  304(c)3,  as  I  have  it  here,  the  right — the  language 
is  very  specific.  It  doesn't  say  it  is  a  5-year  right  to  terminate  at 
expiration  of  the  current  copyright.  It  says  5  years  within  which  to 
terminate  after  56  years. 

So  once  56  years  expires,  you  are  out  of  luck.  And  this  20-year 
extension  would  still  not  help  those  authors  who  had  works  back 
in  the  1920's  and  the  1930's  who  are  about  to  expire  because  the 
56  years  would  expire  for  them  in  many  cases  in  the  mid  1990's 
or  1997,  whatever  the  case  may  be,  but  they  will  not  get  the  extra 
20  years.  We  would  have  to  amend  the  language  to  say  over  the 
next  76  years. 

Give  us  your  name. 

Mr.  MOORHEAD.  Take  the  mike. 

STATEMENT  OF  FRED  KOENIGSBERG,  COUNSEL,  ASCAP 

Mr.  KOENIGSBERG.  My  name  is  Fred  Koenigsberg.  I  am  counsel 
to  ASCAP.  I  thank  you  for  the  opportunity  to  answer  the  question. 

This  point  was  considered.  Congressman,  very  carefully.  The  ter- 
mination right  that  is  provided  in  section  304,  which  allows  the  au- 
thor to  recapture  the  work  at  the  end  of  56  years  would  still  be  in 
effect  even  for  those  works  that  were  originally  published  in  the 
1920's  as  you  just  alluded  to.  But  the  recapture  that  the  author 
would  then  have  under  the  bill  as  drafted  and  as  introduced  would 
be  a  recapture  not  for  the  last  19  years  of  the  copyright  term, 
which  is  what  the  1976  act  provides,  that  is  56  years  into  the  75- 
year  term,  but  it  would  be  a  recapture  at  56  years  for  a  95-year 
term.  So  that  the  author  would  then  be  recapturing  not  19  years, 
but  39  years,  the  entire  remainder  of  the  copyright  term.  And  that 
takes  care  of  the  author's  rights  fully. 

It  is  not  that  the  author  needs  another  termination  right.  To  the 
contrary,  the  existing  termination  right  would  enable  the  author  to 
recapture  this  entire  extension  period  as  well. 

And  the  bill,  as  drafted,  doesn't  have  to  provide  for  an  additional 
termination  right  because  by  keeping  the  termination  right  exactly 
the  way  it  works  under  current  law,  it  enables  the  author  to  recap- 
ture not  merely  for  the  remainder  of  the  old  copyright  term,  but  for 
the  remainder  of  the  extended  copyright  term  as  well. 

And  as  Mr.  Murphy's  testimony  indicated,  there  is  a  delicate  bal- 
ancing here.  There  is  a  question  of  publisher's  rights,  of  author's 
rights,  and  obviously  that  has  to  be  discussed  and  worked  out.  But 
the  point  was  most  definitely  considered  in  the  drafting  of  the  bill 
and  was  considered,  I  think,  from  the  perspective  that  have  you 
looked  at  it. 

Mr.  Becerra.  Let  me  ask  this  question,  and  follow  me  through 
on  the  scenario.  Someone  writes  a  song  in  1923.  Under  this  current 
law  and  under  this  legislation,  you  are  given  56  years 

Mr.  Koenigsberg.  The  song  was  written  in  1923? 

Mr.  Becerra  [continuing].  And  say  the  author  perishes,  dies  in 
1923.  So  you  are  given — ^you  count  the  56  years,  correct? 


100 

Mr.  KOENIGSBERG.  Right.  Which  takes  us  to  1989. 

Mr.  Becerra.  And  then  you  count  a  5-year  period. 

Mr.  KOENIGSBERG.  There  was  a  5-year  period  from  1989  to  1994 
under  which  the  author's  heirs  could  have  recaptured  that  copy- 
right. And,  presumably,  if  it  was  a  work  of  commercial  value  and 
if  they  did  not  reach  an  agreement  with  their  existing  publisher — 
which  in  many  cases  occurred  because  they  were  happy  to  reach 
agreement;  but,  presumably,  if  they  wanted  to  recapture  it  then, 
they  did  recapture  it;  and  they  have  recaptured  it. 

Mr.  Becerra.  Let's  say  someone  didn't  negotiate  during  that  pe- 
riod or  didn't  try  to  terminate  during  that  5-year  period  in  1989  to 
1994,  for  whatever  reason,  believing  that  there  was  no  reason  to 
try  to  extend  the  right  for  those  extra  20  years. 

Mr.  KOENIGSBERG.  For  the  extra  19. 

Mr.  Becerra.  Now,  it  is  1995.  This  legislation  passes,  and  now 
we  have  extended  the  right  of  the  copyright  another  20  years.  The 
owner  now  has  another  additional  20  years.  But  the  author,  be- 
cause current  language  says  you  must  act  between  56  years  plus 
5,  no  longer  has  the  right  to  go  to  the  owner  of  that  copyright  and 
say,  you  have  got  20  extra  years  on  something  I  wrote.  That  was 
not  negotiated  when  we  first  transferred  the  copyright  to  you.  So, 
in  essence,  that  owner  of  the  work  is  losing  20  years'  worth  of  copy- 
right. 

Mr.  KOENIGSBERG.  First  of  all,  let's  talk  about  what  case  we  are 
talking  about.  We  are  talking  about  the  narrow  case  where  the 
work  is  older  than  56  years  today  but  younger  than  75  years.  That 
is  all  we  are  talking  about. 

And  I  should  tell  you.  Congressman,  we  very  carefully  looked  at 
this  question  as  well.  Don't  think  we  overlooked  it. 

The  thought  was  that,  in  this  case,  if  the  work  had  had  any  com- 
mercial value  at  all  and  if  it  was  in  the  author's — actually,  the  au- 
thor's heirs  is  what  we  are  talking  about — interest  to  recapture 
that  copyright,  they  would  have  done  so  for  19  years  as  readily  as 
they  would  have  done  so  for  39  years. 

Mr.  Becerra.  But  what  if  the  author  never  knew  about  the  ex- 
tension that  was  granted  in  1976?  Say  it  was  an  obscure  piece 

Mr.  Bono.  Will  the  gentleman  yield? 

Mr.  Becerra.  Sure,  if  I  can  just  finish  this;  and  then,  of  course, 
I  will  yield. 

What  if  the  author — it  was  an  obscure  piece,  never  got  much  no- 
toriety, and  all  of  a  sudden  Michael  Jackson  picks  it  up  and,  boom, 
it  just  takes  off.  What  if  the  person  thought  why  try  to  pick  up 
$200  worth  of  royalties  for  the  next  year  for  19  years?  I  will  let  it 
expire.  All  of  a  sudden  Michael  Jackson  does  something  with  it, 
and  the  20  years'  extension  is  granted  through  this  legislation,  and 
now  there  is  megadollars  being  lost  by  the  author  because  he  or 
she  may  haven't  understood  the  law  well,  been  advised  of  it  and 
now  no  longer  has  that  opportunity. 

Mr.  KOENIGSBERG.  That  is  a  danger  that  always  exists.  It  doesn't 
merely  apply  to  these  works.  And  it  is  for  that  reason  that  au- 
thors— I  think  particularly  in  the  music  area  songwriters  have 
groups  like  the  Songwriters  Guild  of  America  that  makes  it  a  point 
of  telling  their  members  you  have  got  a  work,  and  it  is  coming  up. 
And  publishers  do  this,  too. 


101 

\ 

Mr.  Becerra.  I  am  hearing  that  I  shouldn't  worry  about  some- 
thing that  affects  your  membership.  You  are  telHng  me  that  you 
are  OK  with  the  way  it  is.  You  wouldn't  rather  see  the  legislation 
amended  to,  say,  76  years  versus  56  years. 

Mr.  KOENIGSBERG.  That  is  exactly  right.  Congressman. 

I  can  tell  you  and  Ms.  Bergman,  as  a  member  of  ASCAP's  board 
can  confirm,  that  ASCAP's  board,  who  are  songwriters  and  music 
publishers,  ASCAP's  board  voted  a  resolution  that  said  that  this 
bill,  the  bill  that  Congressman  Moorhead  has  introduced  and  that 
you  all  have  cosponsored,  is  the  bill  that  ASCAP  supports. 

Mr.  Becerra.  Was  there  any  dissension  or  discord  among  the 
songwriters  or  the  authors  within  ASCAP? 

Mr.  KOENIGSBERG.  There  was  a  great  deal  of  discussion  by  both 
the  writers  and  the  publishers.  It  doesn't  just  go  one  way  or  the 
other,  as  Mr.  Murphy  has  pointed  out.  But  the  conclusion  of 
ASCAP's  members  was  that  this  was  the  bill  that  they  were  sup- 
porting. 

Mr.  Becerra.  Thank  you.  Let  me  yield  to  my  colleague. 

Mr.  Bono.  Thank  you. 

You  raise  an  excellent  point,  and  it  is  a  classic  case  of  legal 
knowledge  and  very  little  knowledge  about  legalities.  And  what  can 
easily  happen  is  what  you  are  talking  about,  is  that  a  nonlegal 
mind  can  just  go  on  with  life  and  suddenly  realize  they  should  have 
done  something.  Not  everybody — excuse  me,  not  everybody  gets  the 
data  that  the  lawyer  is  conveying  to  you.  Not  every  songwriter — 
and,  again,  bear  in  mind  a  lot  of  these  guys  are  kids.  They  are  bril- 
liant, but  they  are  kids  who  go  on  with  life  and  forget  about  these 
things.  So  it  is  a  strange  situation. 

And  I  think  this — I  think  your  point  is  very  well  taken.  I  think 
at  the  point  of  transition  that  the  songwriter  could  be  informed 
that  they  have  rights  or  should  have  an  opportunity  at  the  point 
of  transition,  but  on  the  one  hand  you  are  doing  the  songwriter  a 
tremendous  favor.  You  are  letting  some  guy  maybe  in  the  south 
who  wrote  three  songs  and  they  hit  be  a  source  of  income  for  him 
for  his  annuity  all  his  life,  so  that  is  wonderful. 

But,  on  the  other  hand,  like  you  say,  this  other  scenario  could 
get  played  out;  and  he  could  blow  billions.  So,  you  know,  I  think 
it  is  only  fair  that  there  is  some  effort  made  to  inform  them  of  this 
situation. 

In  most  cases,  probably  99  percent  of  the  cases,  the  songwriter 
would  say,  great,  we  want  the  extra  time — I  know  I  would — and 
probably  would  not  grumble  about  that.  But  it  is  an  excellent  point, 
and  that  occurs.  The  publishers  have  a  battalion  of  attorneys.  The 
songwriter  has  none. 

Mr.  Becerra.  I  thank  the  gentleman  for  his  insightful  com- 
ments, and  I  will  yield  to  my  other  colleague  from  California. 

Mr.  Berman.  I  understand  the  songwriter  who  decided  to  con- 
tinue the  publisher,  not  terminate  the  publisher  and  continue  him 
for  19  more  years,  probably  would  make  the  exact  same  decision 
if  it  was  39  more  years.  I  mean,  it  is  hard  to  understand  the  situa- 
tion where  he  would  not  make  that  extension. 

It  is  the  flip  side  that  I  am  wondering  about  in  terms  of  the  pub- 
lishers. This  reminds  me  of  one  of  my  less  successful  entries  in  the 


102 

copyright  field  with  a  Supreme  Court  case  called  Mills  Music  where 
I  got  chewed  up  on  all  sides. 

But  is — Mr.  Murphy,  are  you  saying  that  you  think  it  is  all 
right — we  agree  that  it  is  all  right  for  the  songwriter  to  be  able  to 
cut  us  out  of  19  more  years  even  though  we  did  all  the  work,  ex- 
ploited it  and  did  all  this  stuff  to  make  it  a  successful  commercial 
effort.  It  is  all  right  to  cut  us  out  for  19  more  years  but  not  to  cut 
us  out  for  39  more  years? 

Is  that,  in  a  sense — that  that — are  you  taking  the  other  side,  in 
a  sense,  of  Mr.  Becerra's  question  and  wanting  the  bill  to  change — 
whatever  publishers  were  on  the  board  of  ASCAP  don't  reflect  your 
view  on  thus  issue? 

Mr.  Murphy.  Yes.  What  we  are  saying  is  we  want  a  balance  of 
the  publishers'  rights.  If  there  is  a  term  extension,  we  would  like 
to  see  the  balance  be  kept  so  that  the  publishers  would  be  able  to 
receive  an  additional  term  extension,  if  you  will,  as  the  writers 
would  be. 

Mr.  Berman.  You  would  be  able  to  if  they  don't  terminate  you 
after  the  56  years;  right? 

Mr.  Murphy.  That  is  correct. 

Mr.  Berman.  But  if  they  do  terminate  you,  then  you  are  no 
longer  terminated  for  the  next  19  years  before  it  goes  into  the  pub- 
lic domain.  You  are  terminated  for  39  years,  and  that  bothers  you? 

Mr.  Murphy.  Yes,  sir. 

Mr.  Berman.  Thank  you. 

Mr.  Becerra.  I  will  leave  this  point,  other  than  to  say  it  almost 
feels  patronizing  to  think  that  we  need  to  do  something  for  you  if 
you  all  don't  think  it  is  necessary.  So  I  will  drop  it  for  now. 

But  I  am  a  bit  concerned  that  there  may  be  some  songwriters  or 
others  who  write  a  copyrightable  work  that  may  not  find  the  same 
protection  afforded  to  them  that  was  afforded  in  1976.  And  it  was 
hotly  debated  then  as  to  whether  the  rights  should  adhere  to  the 
owner  rather  than  the  author,  and  the  burden  is  on  the  author  to 
somehow  terminate  that  right  or  that  extension  to  transfer  that 
right. 

If  anyone  on  the  panel  is  interested  in  answering  this  question, 
if  I  can  get  a  brief  response,  we  are  considering  extending  for  an- 
other 20  years;  and  I  am  a  cosponsor  of  this  legislation  to  do  so. 
Can  we  expect  that  in  another  10,  15,  20  years  we  will  be  hearing 
from  you  all  again  to  extend  another  15  or  20  years  because  peo- 
ple's life  expectancy  has  grown  and  because  Europe  is  doing  some- 
thing different  as  well? 

Ms.  Bergman.  I  think  that  most  of  us  have  made  clear  that  this 
request  is  in  response  to  the  life-plus-70  that  the  European  Com- 
munity will  be  entering  into  a  month  from  now. 

The  life-plus-50  was  based  on  an  agreement  in  Berne,  which  was 
to  cover  two  generations.  That  was  the  original  plan.  Two  genera- 
tions now  is  longer  than  it  was. 

Mr.  Becerra.  So  would  it  be  your  opinion  that  if  Europe  changes 
its  current  regimen  and  says  life-plus-90 

Ms.  Bergman.  I  think  the  trade  argument  speaks  to  that.  I  think 
if,  at  a  certain  point,  it  becomes  clear,  as  it  is  now  to  us,  that  our 
country  will  be  operating  at  a  disadvantage  in  terms  of  the  balance 
of  trade,  then,  yes,  I  don't  see  why  it  shouldn't  be  reopened.  If  the 


103 

trade  argument  is  valid  for  life-plus-70  then  maybe  some  day  it 
would  be  valid  for  life-plus-90. 

Mr.  Becerra.  We  want  to  be  sure  that  we  are  competitive  in  the 
market. 

Ms.  Bergman.  Exactly. 

As  the  only  songwriter  on  this  side  of  the  table,  I  think  there  is 
some  confusion  that  I  hear  about  the  way  the  word  owner,  author, 
artist,  songwriter  is  being  used.  Sometimes  they  are  used  inter- 
changeably here  this  morning.  And  I  am  sorry  Mr.  Valenti  is  not 
here;  but,  for  example,  the  author  of  "The  Way  We  Were"  on  the 
copyright  form  in  Washington  is  Columbia  Pictures.  It  is  not  us. 

And,  as  he  said,  my  husband  and  I  and  Marvin  Hamlisch  sat 
alone  in  a  room.  It  was  not  quite  the  same  thing  as  Victor 
Flemming  and  a  team  of  directors  working  on  a  sound  stage  creat- 
ing the  whole  frame  of  the  movie. 

And  under  that  contract,  Congressman  Bono,  because  this  enter- 
prise is  the  author,  yes,  the  words  can  be  changed;  yes,  the  music 
can  be  changed;  and,  yes,  we  don't  have  control  because  it  was  a 
work  for  hire. 

Mr.  Bono.  I  understand. 

Mr.  Becerra.  Thank  you  very  much  for  that. 

And  let  me  just  short-circuit  this.  I  close  with  just  a  question  for 
Mr.  Richmond.  Mr.  Richmond,  can  you  tell  me — again,  briefly,  be- 
cause I  know  my  time  has  expired,  pretty  much — what  efforts  have 
been  made  to  protect  or  preserve  works  of  less  general  or  public 
recognition  or  less  industry  recognition  such  as  some  of  the  works 
done  by  early  black  filmmakers  or — there  is  a  particular  film  that 
comes  to  my  mind,  "The  Salt  of  the  Earth,"  which  I  thought  was 
a  tremendous  piece;  but,  obviously,  it  was  a  low-budget  piece  that 
talked  about  a  subject  that  may  not  be  that  appealing  to  the  gen- 
eral audience. 

What  is  the  preservation  board  doing  in  regards  to  works  which 
are  culturally  and  historically  important  to  this  Nation  but  may 
not  have  always  been  considered  culturally  and  historically  impor- 
tant? 

Mr.  Richmond.  Well,  I  think  what  the  board  is  doing — the  main 
thing  they  are  doing  is  trying  to  get  the  legislation  passed  for  the 
National  Film  Preservation  Foundation,  because  that  is  the  entity, 
working  with  the  Nation's  archives,  that  will  focus  on  the  preserva- 
tion of  films  that  do  not  have  a  Hollywood  studio  with  both  the  eco- 
nomic interest  and  the  financial  capabilities  of  preserving  it. 

Many  archives  throughout  the  country  do  have  to  focus  on  those 
kinds  of  films.  Many  of  the  black  films,  films  by  black  filmmakers 
that  you  are  talking  about,  I  know  have  been  preserved  or  are 
waiting  to  be  preserved  at  the  Library  of  Congress,  at  the  South- 
west Film  and  Video  Archive  in  Texas  and  at  other  archives 
throughout  the  country. 

So  the  archival  community  certainly  is  aware  of  the  importance 
of  this.  We  spend  a  lot  of  time  trying  to  acquire  the  footage  we 
need  on  these  types  of  films  that  we  know  are  especially  in  danger. 
And  we  do  prioritize  trying  to  preserve  them. 

But  it  is  our  inability  right  now  to  stay  ahead  of  the  race  against 
time  that  is  really  the  impetus  to  the  legislation  that  we  have  been 
talking  about  today. 


104 

Mr.  Becerra.  The  legislation  speaks  about,  with  regard  to  the 
foundation,  creation  of  the  foundation,  about  providing  for  a  diver- 
sity of  points  of  view  from  the  film  community,  and  it  does  mention 
the  different  players  within  the  film  community. 

I  am  wondering  what  your  opinion  would  be  about  extending 
that  beyond  diversity  of  the  film  community.  Because  I  know  for 
the  longest  time  there  were  few  people  who  spoke  up  for  black 
filmmaking  or  for  the  growth  of  Latino  artists  within  the  film  in- 
dustry. How  do  we  make  sure  that  there  is  a  voice  that  reflects 
that  portion  of  the  American  community? 

Mr.  Richmond.  I  think  including  historians  and  educators  in  the 
process  would  be  a  very  good  thing. 

Mr.  Becerra.  We  currently  do  include  them.  And  I  know  that 
the  preservation  board  has  a  membership  of  about  20,  and  it  is 
fairly  specific  in  the  law  as  to  who  sits  on  the  board,  from  which 
associations  and  which  sectors  of  the  industry.  And  I  believe  there 
are  two  or  three  members  who  are  appointed  at  large. 

Do  you  know  what  the  membership  is  of  the  current  preservation 
board?  For  example,  how  many  African-Americans  or  minority 
members  might  sit? 

Mr.  Richmond.  I  am  sorry.  I  am  not  a  member  of  the  board,  and 
I  am  not  familiar  with  the  current  membership. 

Mr.  Becerra.  Do  you  think  it  would  be  worthwhile  to  have  lan- 
guage in  the  legislation  that  reauthorizes  not  only  the  preservation 
board  but  also  the  foundation,  that  considers  not  only  the  diversity 
points  of  view  of  the  film  industry  but  the  diversity  of  the  points 
of  view  of  the  American  community? 

Mr.  Richmond.  I  think  the  intention  of  the  foundation  is  to  in- 
clude that  kind  of  diversity  of  input,  and  anjiihing  that  can  be  done 
to  ensure  that  I  would  be  very  much  in  favor  of 

Mr.  Becerra.  And  I  am  happy  to  hear  you  say  that. 

I  see  nothing  in  the  legislation,  as  it  is  currently  drafted,  which 
would  urge  in  the  formation  of  the  foundation's  board,  or  even  in 
the  current  preservation  board,  that  we  move  toward  ensuring  that 
type  of  diversity  to  the  degree — as  the  language  is — to  the  degree 
practicable. 

Do  I  hear  you  saying  that  that  is  something  that  you  think  might 
be  worthwhile  considering,  including  diversity  beyond  that  within 
the  film  industry? 

Mr.  Richmond.  I  would  be  very  much  in  favor  of  that,  yes.  Input 
from  the  broadest  range  of  the  American  public  is  necessary  in 
making  decisions  on  what  does  get  preserved  with  the  limited  fund- 
ing that  is  available.  Even  with  the  foundation  in  place,  realisti- 
cally, not  everything  gets  saved.  It  is  impossible.  Not  everything  in 
any  area  of  life  gets  saved.  So,  hard  decisions  have  to  be  made;  and 
those  decisions  should  be  as  informed  as  possible. 

Mr.  Becerra.  I  agree.  And  I  think  these  days  we  are  recognizing 
more  and  more  that  there  are  works  out  there  that  are  culturally 
and  historically  significant  which  maybe  10  or  30  or  40,  50  years 
ago  we  would  never  have  considered  them  as  such.  And  I  think  you 
are  right,  and  I  hope  we  head  in  that  direction  with  this  legislation 
as  well. 

Thank  you,  Mr.  Chairman,  for  the  time. 


105 

Mr.  MOORHEAD.  Thank  you.  And  I  want  to  thank  this  panel.  It 
has  been  excellent.  We  appreciate  you  coming  over  and  contribut- 
ing to  this  discussion. 

Mr.  CONYERS.  Mr.  Chairman,  could  I  add  my  compliments  to  the 
panel  and  to  Mr.  Valenti  who  recently  had  to  leave  because  of  a 
time  consideration?  But  I  think  this  has  been  an  extremely  reward- 
ing discussion  about  some  very  important  issues  within  the  two 
pieces  of  legislation  that  you  have  commented  on.  Thank  you  very 
much. 

Mr.  MoORHEAD.  Thank  you. 

I  am  going  to  ask  the  second  panel  to  come  forward. 

Our  first  witness  on  the  second  panel  will  be  Ms.  Martha  Coo- 
lidge,  who  is  the  cochair  of  the  Directors  Guild  of  America's  Presi- 
dent's Committee.  Ms.  Coolidge  is  one  of  today's  most  well-known 
directors.  She  directed  two  major  film  productions  back  to  back  in 
the  past  year:  "Angle"  and  "Lost  in  Yonkers."  Ms.  Coolidge  has  di- 
rected other  award-winning  movies  such  as  "Rambling  Rose"  and 
"Valley  Girl." 

She  holds  a  masters  of  fine  arts  degi-ee  from  New  York  Univer- 
sity and  started  her  professional  career  by  directing  award-winning 
documentaries.  She  helped  to  found  the  Association  of  Independent 
Video  and  Filmmakers,  Inc.  She  serves  on  the  board  of  directors  of 
the  Directors  Guild  of  America,  Women  in  Film,  the  American  Film 
Institute,  and  was  named  to  the  dean's  advisory  board  of  UCLA's 
School  of  Theater,  Film  and  Television. 

Welcome,  Ms.  Coolidge. 

Our  second  witness  will  be  Jeffrey  P.  Eves.  Mr.  Eves  is  the  presi- 
dent of  the  Video  Software  Dealers  Association.  The  VSDA  rep- 
resents over  20,000  video  retail  stores  in  North  America. 

Prior  to  his  present  position,  Mr.  Eves  was  the  corporate  vice 
president  of  Fort  Howard  Corp.  He  served  in  senior  level  manage- 
ment positions  in  the  areas  of  international  trade  government  and 
market.  Mr.  Eves  was  appointed  by  President  Nixon  as  Special  As- 
sistant to  the  President  and  Chief  Liaison  between  the  White 
House  and  the  business  community  and  by  President  Ford  as  Di- 
rector of  White  House  Conferences. 

He  holds  degrees  in  business  from  the  University  of  Nebraska 
and  in  economics  firom  the  University  of  California  at  Berkeley. 

Welcome. 

Our  third  witness  is  Mr.  Michael  Weller.  Mr.  Weller  is  a  play- 
wright and  screenwriter,  having  written  over  40  plays  and  screen- 
plays, including  "Hair"  and  "Ragtime."  He  is  a  member  of  the  Writ- 
ers Guild  of  America  East  and  the  Dramatists  Guild  of  America, 
where  he  serves  as  a  council  member. 

Welcome. 

Our  fourth  witness  is  Ms.  Judith  M.  Saffer,  assistant  general 
counsel  of  Broadcast  Music,  Inc.,  BMI,  one  of  the  Nation's  largest 
performance  rights  society. 

Ms.  Saffer  was  a  graduate  of  the  New  York  University  Law 
School,  a  member  of  the  executive  committee  and  the  president- 
elect of  the  Copyright  Society  of  the  United  States.  She  is  also  sec- 
retary of  the  Foundation  for  a  Creative  America  and  is  active  in 
the  American  Intellectual  Properties  Lawyers  Association. 


106 

Before  commencing  her  career  in  the  law,  Ms.  Saffer  was  a  pro- 
fessional ballet  dancer  with  the  Ballet  Russe  de  Monte  Carlo  and 
appeared  in  films  and  television  as  an  actress  and  dancer. 

Welcome,  Ms.  Saffer. 

We  have  written  statements  from  our  four  witnesses,  which  I  ask 
unanimous  consent  to  be  made  a  part  of  the  record;  and  I  ask  that 
you  all  summarize  your  statements  in  10  minutes  or  less. 

Again,  I  ask  that  the  subcommittee  hold  their  questions  of  all 
four  witnesses  until  they  have  completed  their  presentations.  And 
I  feel  we  are  very  fortunate  to  have  such  a  very  fine  panel  today 
and  with  so  many  accomplishments. 

Mr.  Becerra.  Mr.  Chairman,  I  hate  to  interrupt,  but  I  do  notice 
that  it  is  11:30,  and  we  probably  took  a  lot  more  time  with  the  first 
panel  than  we  should  have.  I  know  that  each  panelist  has  a  great 
deal  of  information  to  provide. 

We  do  have  their  written  testimony,  and  I  would  urge  us  to  ask 
the  panelists,  as  much  as  possible,  to  limit  their  opening  state- 
ments so  we  can  have  as  much  time  to  engage  in  a  good  dialog  with 
them  and  have  the  question-and-answer  period  extended,  because 
I  know  we  are  going  to  start  losing  members  because  we  were  told 
that  the  hearing  would  end  at  about  12. 

Mr.  MOORHEAD.  I  don't  want  to  limit  them  too  much,  because 
they  have  waited  for  a  long  time.  Use  those  comments  with  discre- 
tion. 

Mr.  CONYERS.  Mr.  Chairman,  I  respectfully  enjoyed  the  discus- 
sion that  my  colleague  engaged  in,  so  for  him  to  suggest  that 
maybe  the  witnesses  ought  to  be  briefer  might  come  at  a  little  bit 
inopportune  moment. 

This  panel  will  not  convene  again,  and  I  know  that  members 
have  to  leave.  We  are  very  important  people.  But  let's  give  them 
as  full  a  time  as  possible.  Normally,  it  is  a  5-minute  period,  but  let 
us  be  as  generous  as  we  can. 

Mr.  Becerra,  And,  Mr.  Chairman,  I  meant  in  no  way  to  limit 
them.  I  only  wish  to  be  able  to  participate,  as  I  know  some  of  the 
individuals  who  are  on  the  panel  probably  have  some  urgent  mat- 
ters to  care  for.  And  I  would  hate  to  see  that  we  lose  some  mem- 
bers because  we  all  have  things  to  do.  And  I  would  love  to  have 
them  talk  as  much  as  possible. 

Mr.  Moorhead.  Well,  let's  let  the  witnesses  get  started. 

STATEMENT  OF  MARTHA  COOLmGE,  MEMBER,  DIRECTORS 
GUILD  OF  AMERICA,  INC. 

Ms.  COOLIDGE.  My  name  is  Martha  Coolidge.  I  am  a  feature  film 
director  and  a  member  of  the  Directors  Guild  of  America  and  a 
member  of  its  president's  committee,  which  has  guided  our  legisla- 
tive efforts  in  Washington. 

I  am  here  to  ask  the  subcommittee  to  support  H.R.  1248,  the 
Film  Disclosure  Act,  in  the  name  of  fairness  to  consumers  and  to 
film  artists  as  well. 

What  we  would  like  to  see  is  a  simple  statement  of  fact  regarding 
motion  pictures  altered  after  their  initial  release  and  shown  on  TV, 
airlines,  and  cassettes.  Tell  consumers  clearly  and  succinctly  how 
the  movie  has  been  altered  and  give  the  director,  screenwriter,  and 
cinematographer  a  chance  to  object  if  she  chooses  to  do  so. 


107 

Hardly  revolutionary,  H.R.  1248  is  a  truth-in-the-marketplace 
bill  entirely  consistent  with  current  practices  which  tell  consumers 
about  the  products  they  buy. 

Soon  I  will  be  completing  my  next  major  film,  "Three  Wishes." 
It  will  be  released  at  about  Thanksgiving,  and  I  hope  that  you  will 
all  come  to  see  it  and  you  will  bring  your  families,  and  I  hope  that 
you  will  see  it  more  than  once. 

About  a  year  from  now,  "Three  Wishes"  will  start  to  show  up  in 
the  ancillary  marketplace — on  cable,  in  hotels,  on  airlines,  on  cas- 
settes, and  then  perhaps  on  the  networks  and  then  syndicated  tele- 
vision. What  is  virtually  certain  is  that  when  this  film  is  distrib- 
uted in  these  markets  it  is  going  to  be  altered.  Shot  for  the  wide 
screen,  it  will  be  squeezed  into  a  square  TV  form  and  edited  for  TV 
viewing,  not  for  violence  or  sex  but  to  fit  in  an  assigned  time  slot. 
And  it  may  be  speeded  up  on  TV,  a  process  called  lexiconing,  de- 
stroying all  my  careful  timing. 

I  have  high  hopes  for  this  movie,  commercially  and  artistically. 
I  am  applying  the  25  years  of  experience  I  have  in  directing  films 
to  guide  this  project  frame  by  frame  to  the  best  possible  outcome. 
It  is  my  reputation  that  is  on  the  line  when  people  see  this  film. 
And  when  they  see  less  than  I  have  given,  I  would  like  them  to 
know  that. 

When  "Three  Wishes"  is  altered  in  the  ancillary  markets,  I  would 
like  people  to  know  how  it  has  been  altered;  and  I  would  like  the 
opportunity  to  object  to  these  changes  if  I  judge  them  egregious. 
This  is  all  that  H.R.  1248  seeks  to  accomplish. 

I  consider  myself  a  film  artist.  I  am  a  painter,  a  storj^eller,  using 
motion  picture  cameras,  sound,  and  music.  I  am  involved  in  an  art 
form,  the  great  American  art  form;  and  what  we  do  in  making 
films  enriches  the  artistic  and  cultural  heritage  of  our  country. 

Let  us  treat  the  people  who  see  movies  and  those  who  craft  them 
with  the  modicum  of  legal  respect  this  bill  provides. 

What  will  happen  if  the  labels  in  the  Film  Disclosure  Act  are  ap- 
plied to  films?  Great  upheaval  in  the  marketplace  if  you  listen  to 
our  opponents.  But  where  is  the  evidence  for  this?  There  are  three 
labeling  regimes  in  place  today,  including  the  inadequate  one  from 
the  MPAA,  and  no  economic  catastrophes  have  ensued. 

The  companies  have  a  history  of  opposing  every  innovation  on 
the  basis  that  the  sky  will  fall,  and  it  is  appropriate  for  the  sub- 
committee to  keep  this  in  mind.  The  companies  have  argued  that 
TV,  the  director's  cut,  and  even  VCR's  would  all  ruin  the  motion 
picture  industry.  Not  only  were  they  wrong,  but  all  of  these  ad- 
vances have  vitalized  the  industry  economically.  And  judging  from 
this  history,  if  the  subcommittee  wanted  to  boost  the  financial  for- 
tunes of  the  producing  companies  and  distributors,  it  ought  to  pass 
H.R.  1248  unanimously  today. 

Why  do  we  need  a  law?  Why  can't  we  work  this  out  among  our- 
selves? We  tried,  and  we  failed.  We  couldn't  get  the  major  compa- 
nies to  agree  on  a  factual  label  that  would  in  any  way  recognize 
the  efforts  of  those  on  the  creative  side. 

But  even  if  we  had  agreed  on  the  words  on  a  label,  we  would 
have  failed  in  application  because  of  the  complexity  of  the  universe 
of  film  ownership  and  distribution.  There  are  too  many  players.  No 
table  in  Hollywood,  nor  anyone  in  Washington  where  the  tables  are 


108 

even  bigger,  could  accommodate  everyone  whose  presence  would  be 
required. 

Here  is  a  personal  example  reflective  of  this  complexity.  A  few 
years  ago,  I  directed  a  motion  picture  called  "Rambling  Rose"  about 
the  awakening  of  human  love.  It  was  not  a  movie  about  sex,  but 
one  sexual  scene  was  critical  to  the  film's  plot  and  the  development 
of  its  main  characters. 

The  airline  distributors  simply  cut  the  scene  out  of  the  movie, 
turning  the  story  into  gibberish.  I  had  offered  to  trim  the  scene, 
but  my  offer  was  refused.  This  happened  at  Academy  Award  time 
when  the  film  was  being  considered  for  nominations.  The  reputa- 
tions of  the  actors,  the  writer,  and  my  own  reputation  were  at 
stake. 

The  copyright  holder,  Carrolco,  insisted  in  defense  of  the  movie 
that  the  altered  version  carry  a  label  laying  out  the  alterations,  but 
many  airlines  refuse  to  buy  movies  with  restrictive  labels.  Here  we 
have  the  copyright  holder  insisting  on  a  label  and  distributors  and 
exhibitors  turning  thumbs  down. 

This  is  an  example  of  the  complexity  in  the  world  of  production 
and  distribution  and  the  reason  why  only  a  national  law  can  ad- 
dress the  matter  of  labeling. 

Let  me  briefly  add  the  endorsement  of  the  Directors  Guild  to 
both  of  the  other  measures  under  review  today,  copyright  extension 
and  the  reauthorization  of  the  National  Film  Preservation  Act. 

As  the  Europeans  move  ahead  to  extend  copyright  terms,  we 
need  to  do  the  same  thing  as  a  matter  of  equity  and  economics. 

We  enthusiastically  support  reauthorization  of  the  Film  Preser- 
vation Act,  particularly  since  the  act  grew  out  of  our  own  early  lob- 
bying efforts.  With  funding  for  film  preservation  choked  off  at  the 
National  Endowment  for  the  Arts,  it  is  more  important  than  ever 
that  the  Library  of  Congress  continues  to  hoist  the  banner  for  pres- 
ervation efforts. 

Mr.  Chairman,  I  am  sure  this  hearing  is  a  first,  taking  testimony 
on  three  different  bills  that  affect  directly,  though  in  disparate 
ways,  the  motion  picture  industry.  I  take  it  as  a  sign  that  Congress 
now  recognizes  the  complexity  of  the  economic,  artistic,  and  cul- 
tural issues  related  to  motion  pictures. 

In  our  view,  all  of  these  measures  advance  either  a  sense  of  eco- 
nomic fairness  related  to  movies  or  advance  their  importance  in  the 
cultural  sphere.  The  most  elemental  advance  would  be  to  end  de- 
ception in  the  U.S.  marketplace  and  tell  consumers  when  the  movie 
they  are  watching  has  been  altered.  This  stamp  of  authenticity  is 
a  small  step  to  take  to  enhance  respect  for  our  greatest  art  form. 

And  I  want  to  personally  applaud  Mr.  Bono  for  his  concern  for 
the  creators  of  songs  which  I  think  is  very  similar  to  our  concern 
for  the  creators  of  film,  our  film  artists, 

I  just  have  three  things  that  I  would  request,  Mr.  Chairman,  to 
be  placed  into  the  record: 

The  first  is  the  position  paper  supporting  the  Film  Disclosure  Act 
by  the  American  Cinema  Editors  and  by  the  Motion  Picture  Editors 
Guild. 

The  second  is  a  short  letter  to  you  and  the  committee  from 
Jimmy  Stewart  supporting  H.R.  1248.  Mr.  Stewart  has  been  con- 


109 

cerned  with  this  issue  for  many  years  and  has  visited  Congress 
several  times. 

And,  finally,  I  am  pleased  to  announce  that  the  Screen  Actors 
Guild  East  and  West  have  officially  voted  to  support  the  Film  Dis- 
closure Act.  This  is  a  tremendous  vote  of  support  for  the  bill.  SAG 
is  a  huge  union  with  almost  80,000  members  all  over  the  United 
States.  And  I  would  like  to  point  out  that  this  position  of  support 
underscores  the  traditional  relationship  of  trust  between  actors  and 
directors. 

Thank  you  very  much,  Mr.  Chairman,  for  listening  to  our  peti- 
tion. 

[The  prepared  statement  of  Ms.  Coolidge  follows:] 

Prepared  Statement  of  Martha  Coolidge,  Member,  Directors  Guild  of 

America,  Inc. 

My  name  is  Martha  Coolidge,  and  I  am  privileged  to  appear  before  the  sub- 
committee today  in  my  capacity  as  a  feature  film  director  and  as  a  member  of  the 
Directors  Guild  of  America.  I  have  been  a  member  for  some  years  of  the  DGA's 
President's  Committee,  which  has  steered  our  efforts  in  Washington  to  provide 
greater  protection  for  films  and  film  artists. 

Perhaps  I  am  alone  among  the  witnesses  giving  testimony  this  morning  in  being 
enthusiastic  about  all  three  pieces  of  legislation  that  the  subcommittee  is  consider- 
ing today,  though  my  remarks  in  the  main  focus  on  H.R.  1248,  the  Film  Disclosure 
Act  of  1995. 

I  would  doubt  that  any  other  single  Congressional  hearing  has  ever  focused  on 
three  bills  together  that  relate  so  directly,  though  in  disparate  ways,  to  the  motion 
picture  industry.  I  take  this  as  a  recognition  by  Congress  of  the  importance  and 
complexity  of  our  industry  in  economic  and  cultural  terms. 

Before  the  main  focus  of  my  remarks,  let  me  briefly  touch  on  H.R.  989,  the  bill 
extending  copyright  term,  and  H.R.  1734,  the  bill  reauthorizing  the  National  Film 
Preservation  Act. 

H.R.  989 

Within  the  last  year  or  so,  the  European  Union  has  adopted  a  rule  extending  the 
term  of  copyright  among  its  member  nations,  essentially  seeking  to  harmonize  dif- 
fering copyright  terms  among  the  countries  of  the  Union.  And  as  is  almost  always 
the  case  when  the  Europeans  lead  the  way,  the  emphasis  is  on  providing  greater 
protection  to  authors. 

Too  often,  our  own  country,  the  world's  leading  copyright  exporter,  follows  along, 
rather  than  leads,  in  efforts  to  enhance  protection.  We  must  not  delay,  though,  in 
adopting  a  longer  term  of  copyright  protection  for  reasons  that  essentially  have  to 
do  with  equity  and  economics. 

It  simply  is  unfair  that  authors  and  copjnright  holders  in  Europe  should  enjoy  a 
greater  incentive  to  the  production  of  further  work  through  enhanced  protection  de- 
nied their  American  counterparts.  There  is  also  what  I  would  call  the  "Free  lunch" 
issue,  in  which  Europeans  will  be  able  to  enjoy  American  cop5rrighted  works  without 
paying  for  them,  though  European  authors  will  be  compensated. 

The  average  theatrical  motion  picture  these  days  costs  many  millions  of  dollars 
to  make.  To  recoup  this  investment,  the  companies  have  to  distribute  product  in 
many  countries  and  over  a  long  period  of  time. 

The  copjrright  term  of  a  number  of  landmark  films,  such  as  "Gone  With  The 
Wind,"  will  expire  within  a  few  years,  even  though  there  is  obviously  considerable 
commercial  value  left  in  the  film.  Cycling  more  money  through  the  system  through 
an  extended  copyright  term  will  help  insure  future  production. 

Having  said  this,  it  is  worth  noting  that  the  directive  from  the  European  commu- 
nity that  encourages  a  longer  copyright  term  also  explicitly  states  that  "the  prin- 
cipal director  of  a  cinematographic  or  audiovisual  work  shall  be  considered  as  its 
author  or  one  of  its  authors.  Member  states  shall  be  free  to  designate  other  co-au- 
thors." 

Again,  as  in  the  case  of  Berne  implementation,  we  in  the  U.S.  seem  spurred  on 
to  higher  levels  of  copyright  protection  by  following  a  European  model,  but  we  do 
so  selectively.  So  long  as  we  studiously  avoid  a  discussion  of  moral  rights,  of  natural 
persons  as  authors,  even  in  a  collaborative  setting,  we  will  not  close  the  gap  of  hy- 
pocrisy with  which  the  Europeans  regard  our  copyright  policy. 


110 

So,  we  support  the  extension  of  the  term  of  copyright,  but  we  would  ask  that  the 
subcommittee  hold  hearings  on  H.R.  1244,  the  Theatrical  Motion  Picture  Authorship 
Act,  introduced  by  Congressman  Bryant,  to  explicate  the  issues  surrounding  moral 
rights.  Maybe  we  can  find  a  way  to  close  this  hypocrisy  gap  completely. 

THE  NATIONAL  FILM  PRESERVATION  ACT 

Of  course,  the  DGA  enthusiastically  supports  the  reauthorization  of  the  National 
Film  Preservation  Act,  an  act  which  grew  out  of  our  earlier  lobbying  efforts  to  en- 
hance film  protection. 

Without  recounting  the  whole  history  of  this  act's  passage,  suffice  it  to  say  that 
in  its  initial  bill  form,  it  offered  elements  relating  to  labeling  and  preservation.  The 
labeling  elements  have  been  dropped,  and  in  fact,  picked  up  in  a  more  extensive 
way  by  the  Film  Disclosure  Act. 

But  the  preservation  act,  as  it  is  presently  constituted,  continues  to  do  important 
work,  particularly  in  trying  to  salvage  and  restore  artistically  and  culturally  impor- 
tant films  on  the  edge  of  extinction. 

The  National  Endowment  for  the  Arts  used  to  provide  some  funding  for  film  pres- 
ervation efforts,  but  has  been  forced  to  abandon  these  efforts  in  the  face  of  previous 
budget  cutbacks.  Given  the  Endowment's  present  peril,  it  seems  extremely  unlikely 
that  any  of  these  ftinds  will  ever  be  restored. 

So  it  seems  particularly  appropriate  that  the  Library  of  Congress  should  continue 
to  raise  a  small  banner  on  behalf  of  preservation  efforts. 

The  bill  before  you  adds  another  title  to  establish  a  mechanism  for  preservation 
fundraising  in  the  private  sector  in  support  of  the  Act's  purposes.  Given  the  times, 
particularly  the  cutback  in  Endowment  funding,  we  believe  this  title  is  a  creative 
and  necessary  adaptation  if  we  as  a  nation  are  to  continue  even  mincing  efforts  to 
save  our  country's  extraordinary  film  heritage. 

These  funding  efforts  are  essentially  private  and  voluntary,  and  government  ap- 
propriations are  only  available  on  a  matching  basis. 

H.R.  1248 

Both  of  these  measures  concern  us,  but  the  bill  that  has  the  most  import  for  us 
is  the  Film  Disclosiire  Act,  H.R.  1248,  sponsored  in  the  House  by  Congressman  Bar- 
ney Frank  and  in  the  Senate  by  Senator  Alan  Simpson. 

This  is  the  third  Congress  in  which  a  measure  similar  to  this  one  has  been  intro- 
duced; we  intend  to  persevere  as  do  our  legislative  friends.  This  subcommittee  has 
previously  taken  testimony  on  a  similar  bill,  but  the  times  and  circumstances  have 
changed  somewhat,  and  so  we  are  particularly  glad  to  have  another  opportunity  to 
raise  some  issues  regarding  the  bill  with  the  subcommittee. 

The  purpose  of  the  bill  is  simple.  When  a  theatrical  motion  picture  has  been 
changed,  after  its  initial  release,  for  viewing  on,  among  other  avenues,  TV  or  on  a 
cassette  or  on  an  airliner,  tell  people.  Describe  succinctly  the  changes  that  have 
been  made  and  give  the  director,  the  screenwriter,  and  the  cinematographer  a 
chance  to  object  to  these  changes  if  they  choose  to  do  so.  It  is  the  artistry  of  the 
film  that  suffers  through  alterations,  and  so  it  is  only  proper,  in  oiu*  view,  that  the 
main  creative  authors  ought  to  have  a  chance  to  comment  on  an  altered  version. 

We  consider  this  bill  in  the  vein  of  consumer  protection.  When  a  film  is  advertised 
for  viewing  on  television,  either  the  networks  or  syndicated  television,  the  public  is 
given  the  clear  impression  that  what  they  will  be  seeing  is  the  version  they  saw, 
or  wish  they  had  seen,  in  the  movie  theater. 

Our  opponents  have  argued  that  the  viewing  public  is  aware  that  changes  have 
been  made  to  the  film  when  it  is  shown  on  TV.  We  contend  that  the  argument  is 
preposterous — the  viewing  public  has  no  idea  of  the  extent  to  which  feature  films 
are  routinely  cannibalized  for  TV  viewing. 

When  the  rectangular  dimensions  of  a  film's  theatrical  version  are  squeezed 
(panned  and  scanned)  into  the  square  format  of  a  TV  screen,  as  much  as  45  percent 
of  the  visual  image  is  lost.  To  fit  a  film  into  a  specified  time  allotment,  usually  two 
hours,  substantial  chunks  of  the  film  are  often  edited  out — not  primarily  for  taking 
out  objectionable  scenes  of  violence  or  sex,  but  for  fitting  in  more  commercials.  Ofi;en 
this  gross  editing  turns  a  coherent  narrative  into  gibberish.  Then  you  have  an  insid- 
ious process  called  lexiconning  which  speeds  up  scenes  (altering  the  pace  of  the  per- 
formances), again  in  order  to  fit  in  more  commercials.  Finally,  among  the  alterations 
most  common  is  the  one  most  well  known,  colorization,  in  which  a  computer's  colors 
are  added  to  a  film  originally  shot  in  black  and  white. 

Obviously,  not  all  of  these  alterations  are  made  to  all  films,  but  a  very,  very  large 
percentage  are  subjected  to  panning-and-scanning  and  gross  editing.  Obviously,  as 
filmmakers  who  labor  over  each  scene,  we  find  all  of  these  alterations  objectionable. 


Ill 

But  we  are  not  here  to  seek  yovir  help  in  ending  or  deterring  these  alterations.  Abso- 
lutely not! 

What  we  are  saying  is  that  these  alterations  are  egregious  and  widespread,  and 
that  the  public  has  absolutely  no  idea  of  the  extent  to  which  movies  shown  on  TV 
do  not  reflect  the  theatrical  version  they  believe  they  are  seeing. 

So,  as  a  matter  of  truth-in-advertising,  simply  tell  the  people.  Put  it  another  way. 
Those  who  oppose  labeling  are  really  putting  themselves  in  the  position  of  defending 
false  advertising  in  the  marketplace,  hardly  a  high  moral  plane  from  which  to 
mount  a  defense. 

But  leave  morality  out  of  this.  The  real  fear  about  the  labeling  bill  we  endorse 
is  that  its  implementation  would  somehow  cause  economic  harm  to  the  industry. 
This  is  always  the  argument  to  which  the  producers  and  distributors  return. 

Firstly,  we  would  advocate  nothing  that  would  harm  the  industry  in  which  we 
make  our  living.  When  movies  are  shown  in  ancillary  markets,  as  they  must  be  to 
recoup  their  costs,  directors  get  something  out  of  it,  thanks  to  the  negotiated  resid- 
ual arrangements.  We  would  not  support  legislation  that  negates  these  arrange- 
ments. 

Secondly,  the  producers  have  a  long  history  of  wailing  how  innovations  are  going 
to  ruin  the  industry.  Television  was  going  to  ruin  movies;  VCR's  were  going  to  ruin 
movies.  Now  labels  are  going  to  ruin  movies.  Congress  should  bear  in  mind  this 
chicken  little,  the-sky-is-falling  style  of  arguing.  If  history  is  any  guide,  labels  ought 
to  increase  revenue  substantially  through  the  public  demand  for  authentic  theatrical 
versions  in  ancillary  markets. 

Thirdly,  there  currently  are  a  variety  of  labeling  regimes  in  place  and  operating, 
and  there  is  absolutely  no  evidence  that  any  untoward  economic  consequence  has 
occurred  as  a  result. 

This  really  is  the  crux  of  the  matter.  Would  labels  have  a  negative  impact  on  the 
production  or  distribution  processes?  Based  on  systems  in  place,  the  empirical  an- 
swer, the  answer  with  any  evidence  behind  it,  is  emphatically  no.  The  MPAA  has 
produced  no  factual  evidence  to  support  their  view.  In  fact,  each  time  they  have 
warned  that  their  fortunes  would  be  ruined  by  the  institution  of  a  new  idea,  exactly 
the  reverse  has  turned  out  to  be  true. 

The  subcommittee  is  aware  that  the  MPAA  companies  instituted  a  voluntary  la- 
beling system  a  few  months  ago  relating  to  the  release  of  new  (and  altered)  feature 
films  into  the  ancillary  markets. 

From  our  point  of  view,  these  labels  are  totally  inadequate  and  misleading.  They 
do  not  provide  information  succinctly  as  to  what  changes  have  been  made  in  a  film, 
nor  do  they  provide  an  opportunity  for  a  director,  cinematographer,  or  screenwriter 
to  object  if  he  or  she  would  choose  to  do  so. 

Let  me  give  an  example.  When  a  movie  has  been  edited,  the  company  label  states 
that  the  film  "has  been  edited  for  content."  Clearly,  the  implication  is  that  the  vio- 
lence and  sexually  provocative  scenes  have  been  deleted  in  conformance  with  family 
viewing  sensibilities. 

But  this  is  the  phrase  applied  to  editing,  period.  Family  movies,  where  there  is 
no  violence  or  no  sex  scenes,  bear  the  same  label.  If  the  company  labels  are  crafted 
to  be  so  manipulative,  much  better  not  to  have  them  at  all.  Consumers  are  being 
gulled  when  we  ought  to  play  it  straight. 

What  is  wrong,  or  what  untoward  economic  consequence  would  flow  from  saying 
"five  minutes  have  been  deleted  from  this  film"?  There  is  nothing  to  be  afraid  of 
on  any  level  from  telling  the  truth,  and  that  is  what  the  Frank-Simpson  bill  is  all 
about. 

Let  me  also  point  out  that  the  labeling  regimes  adopted  by  Turner  Entertainment 
on  their  colorized  films  or  the  American  Movie  Classics  cable  channel  have  not  and 
do  not  harm  in  any  way  the  marketing  and  distribution  of  films. 

(Turner  Entertainment  adamantly  opposed  the  original  adoption  of  the  National 
Film  Preservation  act  because  of  its  labeling  provisions.  Within  weeks  of  passage, 
and  before  the  Library  dropped  these  provisions,  Tiimer  began  running  labels  on 
all  its  colorized  films,  again  doing  no  discemable  marketing  damage  whatsoever.) 

Let  me  also  point  out  that  the  MPAA  companies  lobbied  the  FBI  successfully  so 
a  very  official  looking  label  warning  of  piracy  infractions  goes  on  cassettes.  So  the 
opposition  by  the  MPAA  to  official  labels  is  pretty  selective. 

Why  do  we  need  a  law?  Why  can't  we  sit  around  a  table  in  Hollywood  and  work 
this  out? 

We  tried.  And  we  failed.  We  failed  because  we  wanted  the  labels  to  be  clear  about 
the  alterations  that  were  made,  and  because  we  wanted  an  artistic  author's  dis- 
claimer. 

And  we  failed  because  in  a  very  important  regard  the  MPAA  could  not  deliver  on 
a  promise  it  made  to  Congress  in  encouraging  voluntary  discussions. 


112 

The  MPAA  had  said  that  any  agreement  we  reached  would  be  embraced  by  copy- 
right holders  and  distributors  across  the  board.  They  could  bring  them  along,  so 
they  said. 

They  couldn't;  they  haven't.  And  this  was  one  of  the  main  reasons  we  were  reluc- 
tant to  begin  talks  in  the  first  place.  As  a  matter  of  fact,  when  we  began  voluntary 
negotiations,  there  was  an  explicit  commitment  that  the  networks  would  go  along 
with  whatever  emerged  from  the  talks. 

When  the  talks  broke  off,  the  MPAA  said  to  us  and  the  other  creative  guilds  sit- 
ting around  the  table,  they  would  simply  go  ahead  and  implement  the  label  they 
found  satisfactory  and  we  did  not. 

But  that  is  not  the  label  presently  appearing  on  a  few  feature  films  because  the 
networks,  for  whom  the  MPAA  was  supposedly  acting  as  a  good  faith  surrogate,  ob- 
jected. The  networks  forced  the  MPAA  to  make  a  bad  label  even  worse.  As  we  said, 
the  MPAA  can't  bring  all  the  players  to  the  table;  the  table  isn't  big  enough. 

In  any  case,  Congressman  Frank  and  Senator  Simpson  have  set  out  to  make  the 
American  public  aware  of  changes  made  in  films — not  a  few  films,  as  is  the  case 
through  the  MPAA  labels,  but  the  20,000  films  in  domestic  circulation.  Film  owner- 
ship and  distribution  is  in  many  hands;  only  some  of  which  are  MPAA  companies. 

The  simple  and  indisputable  fact  of  the  complexity  of  the  universe  of  film  owner- 
ship and  distributorship  is  the  reason  for  legislation.  Only  a  national  commitment 
to  inform  film  consumers  will  bring  all  firm  copyright  holders  and  distributors 
under  the  tent  of  disclosure. 

We  would  argue  that  the  time  for  notices  on  films,  such  as  the  labels  we  support, 
is  more  important  now  than  ever  before.  The  new  digital  revolution  quickly  unfold- 
ing before  us  provides  greater  and  greater  opportunities  for  manipulating  entertain- 
ment and  information  products.  Film  labels  are  nothing  more  than  certificates  of  au- 
thentication— that  something  has  been  changed  from  the  original  version  you  were 
expecting. 

When  movie  industry  officials — and  government  officials — press  the  Europeans  to 
let  our  film  and  television  programs  pass  freely  into  their  countries;  when  we  press 
China  to  put  a  stop  to  the  theft;  of  our  films — we  hear  that  all  of  this  is  done  in 
the  name  of  America's  film  artists.  It  is  they,  we  hear,  who  are  being  denied  the 
rewards  of  their  labor.  It  is  they  who  craft  the  artistic  and  cultural  products  that 
are  craved  in  foreign  markets. 

Would  that  the  producers  would  take  the  same  line  in  this  country  as  they  take 
abroad.  We  believe  that  rhetoric  that  films  are  an  art  form,  created  by  artists,  and 
that  they  are  our  best  and  most  ubiquitous  ambassadors  of  the  American  way  of 
life. 

We  don't  believe  the  producers  should  play  the  violins  of  pathos  about  American 
film  artists  when  it  suits  them  abroad,  only  to  stand  adamantly  against  a  respectful 
regard  for  films  and  film  artists  in  this  country. 

Telling  consumers  what  changes  have  been  made  in  a  film,  giving  directors, 
screenwriters,  and  cinematographers  a  chance  to  object,  is  a  small  increment  of  re- 
spect. 

Ms.  COOLIDGE.  And  I  believe  I  am  supposed  to  introduce  Mrs. 
Henry  Mancini. 

Mr.  MOORHEAD.  Without  objection,  the  documents  are  made  a 
part  of  the  record. 

Ms.  COOLIDGE.  May  I  do  that? 

Mr.  MoORHEAD.  Yes. 

[See  appendix,  p.  503.] 

Ms.  COOLIDGE.  Mrs.  Henry  Mancini  has  a  very  short  statement. 

Mr.  MoORHEAD.  Go  ahead. 

STATEMENT  OF  MRS.  HENRY  MANCINI 

Mrs.  Mancini.  I  will  be  very,  very  brief. 

I  am  the  widow  of  Henry  Mancini  who  passed  away  last  year, 
and  I  am  here  to  just  point  out  to  you  that  the  body  of  work  that 
he  left  is  certainly  woven  into  the  fabric  of  the  international  music 
landscape.  I  urge  you  to  pass  the  legislation  that  extends  the  copy- 
right law. 


113 

And,  with  that,  I  won't  take  up  any  more  of  your  time.  Thank 
you  very  much. 
Mr.  MooRHEAD.  Mr.  Eves. 

STATEMENT  OF  JEFFREY  P.  EVES,  PRESIDENT,  VIDEO  SOFT- 
WARE DEALERS  ASSOCIATION,  ON  BEHALF  OF  THE  COMMIT- 
TEE FOR  AMERICA'S  COPYRIGHT  COMMUNITY 

Mr.  Eves.  Good  morning,  Mr.  Chairman.  My  name  is  Jeffrey 
Eves.  I  am  president  of  the  Video  Software  Dealers  Association,  an 
international  trade  association  for  the  home  video  entertainment 
industry. 

VSDA's  3,000  member  companies  represent  some  20,000  video 
stores  and  provide  more  than  500,000  jobs  nationwide,  and  I  appre- 
ciate the  opportunity  to  share  our  views  with  you  on  this  important 
matter  this  morning. 

I  am  here  this  morning  on  the  behalf  of  the  Committee  for  Amer- 
ica's Copyright  Community.  We  are  a  group  of  industries  that  work 
together  to  protect  the  flourishing  U.S.  copyright  system  from  so- 
called  moral  rights  legislation. 

We  believe  moral  rights  laws,  such  as  the  film  labeling  legisla- 
tion that  you  are  considering  today,  would  disrupt  a  legal  regime 
that  is  working  well  for  copyright  owners,  for  distributors,  for 
American  consumers  and  for  the  U.S.  economy. 

Today  I  will  focus  my  remarks  on  the  film  labeling  bill  and  its 
impact  on  the  people  that  I  represent,  the  men  and  women  who 
manage  and  run  tens  of  thousands  of  stores  where  American  con- 
sumers rent  and  purchase  prerecorded  movies  on  videocassette. 

Mr.  Chairman,  the  American  consumers  vote  with  their  pocket- 
books  every  day.  They  have  made  home  video  their  No.  1  leisure 
time  activity  and  their  top  choice  for  viewing  movies.  Last  year, 
American  consumers  spent  $14.5  billion  renting  and  buying  videos, 
almost  three  times  what  was  spent  to  acquire  and  purchase  movie 
theater  tickets.  In  fact,  each  week  over  60  million  people  in  the 
United  States  visit  a  video  store — 60  million  people  a  week. 

You  are  all  probably  familiar  with  the  typical  video  store.  As  you 
know,  it  is  an  environment  that  lends  itself  to  conversation.  People 
discuss  whether  a  movie  was  good  or  bad,  whether  an  actor  was 
right  for  the  role,  whether  the  movie  was  as  good  as  the  book.  I 
can  assure  you  that  you  will  not  hear  debates  on  the  issue  of  film 
to  video  adaptation,  which  is  the  essence  of  the  moral  rights  dis- 
pute raised  by  some  members  of  the  creative  community. 

Consumers  love  the  low  cost,  variety,  and  convenience  offered  by 
home  video;  and  they  know  the  experience  of  watching  a  movie  in 
their  living  rooms  is  different  from  watching  it  in  a  darkened  thea- 
ter. Consumers  do  not  need  a  warning  label  to  tell  them  that,  and 
video  dealers  do  not  need  a  disparaging  label  that  seems  to  discour- 
age renters  from  renting  and  buying  movies  on  video. 

I  do  not  mean  to  take  an5rthing  away  from  the  creative  geniuses 
that  are  involved  in  the  movie-making  process.  In  fact,  in  response 
to  concerns  raised  by  proponents  of  this  legislation,  the  motion  pic- 
ture industry  adopted  a  voluntary  film  labeling  program  in  1993. 

The  voluntary  program,  which  calls  for  labeling  of  both  the  video 
and  the  video  package,  has  been  a  great  success.  In  fact,  we  re- 
cently reviewed  the  top  40  video  rentals  listed  in  the  May  13th  edi- 


114 

tion  of  Billboard  magazine  and  found  that  90  percent  of  them  were 
in  compliance  with  the  voluntary  labeling  program. 

The  voluntary  label  in  use  today  informs  the  consumer  without 
disparaging  the  video  product.  It  says:  "This  film  has  been  modified 
from  its  original  version.  It  has  been  formatted  to  fit  your  tele- 
vision set."  And  I  will  show  an  example  or  two  of  that  in  a  minute. 

This  voluntary  labeling  system  applies  to  home  video,  cable,  pay- 
per-view,  broadcast  television,  and  every  other  medium.  It  is  likely 
that  the  film  that  was  shown  on  your  flight  from  Washington  to 
Los  Angeles  was  labeled  under  this  system. 

In  our  opinion,  the  legislation  before  you  is  a  quintessential  ex- 
ample of  unnecessary  Government  regulation.  Congressman 
Frank's  bill  represents  Government  intrusion  into  a  marketplace 
that  is  working  successfully  for  the  industry  and  for  the  consumer. 
This  legislation,  Mr.  Chairman,  would  seem  to  have  all  the  charac- 
teristics of  a  solution  in  search  of  a  problem. 

While  the  supporters  of  this  legislation  may  quarrel  with  the  pre- 
cise wording  on  the  voluntary  label,  that  does  not  mean  that  Gov- 
ernment needs  to  step  in  in  this  case.  This  is  an  issue  that  the  in- 
dustry can  and  should  resolve  on  its  own. 

The  labels  included  in  this  legislation  would  mislead  consumers 
by  making  it  appear  that  they  are  getting  an  inferior  product  when 
they  buy  or  rent  a  video.  Under  H.R.  1248,  if  an  artistic  author  ob- 
jects to  any  alterations,  pay-per-view,  cable,  and  network  television 
broadcasters  would  be  required  to  note  the  objection  in  a  signboard 
warning  at  the  beginning  of  the  film.  The  home  video  release  would 
carry  the  additional  burden  of  permanently  noting  the  objection  not 
once,  but  twice,  on  the  video  boxes  which  serve  as  the  primary 
means  of  marketing  the  video  product. 

Mr.  Chairman,  I  would  like  to  take  a  moment  and  show  you  a 
video  that  demonstrates  the  voluntary  labeling  program  that  I 
have  been  speaking  about.  I  will  show  you  several  labeling  exam- 
ples, including  home  video,  broadcast  television,  and  pay-per-view; 
and  I  will  compare  these  labels  to  the  Government  mandate  label 
for  automobiles.  I  think  you  will  see  how  much  more  effective  the 
voluntary  labels  are  when  compared  to  the  Government-mandated 
label. 

If  you  will  play  the  tape,  the  first  clip  is  taken  from  the  home 
video  of  Disney's  "Angels  in  the  Outfield."  As  you  can  see  here,  the 
label  is  in  legible  type  and  displayed  in  a  conspicuous  and  readable 
basis. 

The  second  example  comes  from  a  Universal  film,  "The  River 
Wild",  with  Meryl  Streep. 

Mr.  Herman.  Is  this  on  TV  or  video? 

Mr.  Eves.  This  is  on  videocassette.  Again,  this  clip  comes  from 
a  video;  and  it  is  available  in  stores  all  over  the  country. 

Next,  I  would  like  to  give  you  a  couple  of  examples  of  how  these 
labels  appear  on  the  home  video  package.  I  have  copies  of  a  couple 
of  movies  here,  and  I  think  you  may  have  copies  of  this  as  well. 
And  you  will  see  the  labeling  in  both  cases  appearing  on  the  back 
side  of  the  videocassette. 

It  says:  "The  film  has  been  modified  from  its  original  version.  It 
has  been  formatted  to  fit  your  television  set."  One  just  like  the  one 


115 

that  you  see  here  in  front  of  you  and  the  kind  most  everyone 
watches  at  home. 

As  additional  evidence — and  if  you  don't  have  some  boxes  of  this, 
Mr.  Chairman  or  Members,  we  can  certainly  pass  them  out — as  ad- 
ditional evidence  of  the  widespread  implementation  of  the  program, 
I  would  like  to  show  you  this  from  the  CBS  movie  that  was  shown 
on  free  TV  in  May  viewed  by  millions  of  people.  It  is  with  Whoopi 
Goldberg  in  "Ghost."  You  will  notice  that  the  label  for  the  broad- 
cast movies  indicates  that  the  film  was  altered  to  fit  within  a  2- 
hour  time  slot  and  omits  certain  content. 

The  other  example,  from  a  pay-per-view  movie  offered  in  Wash- 
ington in  May,  Arnold  Schwarzenegger  with  "True  Lies."  And  this 
is  the  labeling  that  went  on  that  where  it  talked  about  the  movie 
being  formatted  to  fit  the  TV  screen. 

Now,  Mr.  Chairman,  let's  compare  the  voluntary  label  to  one  that 
would  be  required  in  H.R.  1248. 

The  following  label  can  be  found  on  pages  13  and  14  of  the  bill. 
What  is  on  the  screen  is  not  exaggerated  or  embellished  in  any 
way.  It  is  too  long  and  difficult  to  understand;  and  if  anyone  takes 
the  time  to  read  it  at  all,  they  are  going  to  think  they  are  getting 
an  inferior  product.  A  broadcaster  who  carried  that  label  would  be 
inviting  the  audience  to  do  something  else  with  their  time. 

We  are  concluding  with  a  label  that  is  actually  used  today,  a  fed- 
erally-mandated label.  You  will  see  it  goes  through  three  different 
screens.  I  am  talking  about  the  label  required  for  the  advertise- 
ment of  an  automobile.  I  don't  know  how  many  of  you  have  taken 
the  time  to  read  it. 

The  particular  example  that  have  you  seen  here  comes  from  an 
advertisement  for  an  automobile  broadcast  in  Washington,  DC,  in 
May.  As  you  can  see,  the  voluntary  labeling  program  very  effec- 
tively informs  the  consumer  about  the  product  that  they  are  view- 
ing without  disparaging  the  product  itself. 

A  Federal  law  such  as  the  one  proposed  in  H.R.  1248  is  simply 
not  necessary. 

Mr.  Chairman,  I  thank  you  for  your  time  and  attention. 

[The  prepared  statement  of  Mr.  Eves  follows:] 


116 

Prepared  Statement  of  Jeffrey  Eves,  President,  Video  Software  Dealers 
Association,  on  Behalf  of  the  Committee  for  America's  Copyright  Community 

INTRODUCTION 


Mr.  Chairman,  my  name  is  Jeff  Eves  and  I  am  President  of  the  Video  Software 
Dealers  Association.  VSDA  is  the  national  trade  association  of  home  video  retailers  and 
distributors.  We  represent  the  vast  majority  of  the  30,000  video  stores  across  the  country. 

Although  my  expertise  is  in  home  video,  I  am  also  here  today  on  behalf  of  the 
Committee  for  America's  Copyright  Community.  The  Committee  represents  a  wide  range 
of  copyright  industries,  including  producers  of  books,  magazines,  newsletters,  computer 
software  and  databases,  sound  recordings,  broadcasting,  cable,  video,  advertising  and 
motion  pictures.  (A  list  of  CACC  members  is  attached).  Its  purpose  is  to  ensure  the 
continued  vitality  of  the  American  copyright  system.  This  copyright  system  has  made  the 
United  States  the  world  leader  in  virtually  all  areas  of  creative  works. 

Mr.  Chairman,  we  are  strongly  opposed  to  H.R.  1248,  the  Film  Disclosure  Act  of 
1995,  which  would  create  a  complicated,  burdensome,  government-mandated  labeling 
program  to  address  a  problem  that  does  not  exist. 

Mr.  Chairman,  this  particular  legislation  was  first  considered  by  your  Subcommittee 
in  1992.   It  remains  a  solution  in  search  of  a  problem.  American  consumers  enjoy  access 
to  the  finest  of  films  in  the  world  through  a  variety  of  channels  -  theatre,  video,  network 
television,  cable  etc.  Since  the  advent  of  television,  consumers  have  been  able  to  view 

1 


117 

motion  pictures  in  their  living  rooms  through  "panning  and  scanning,"  a  technique  which 
adapts  the  film  to  the  television  screen. 

Mr.  Chairman,  as  VSDA  noted  in  its  testimony  before  this  subcommittee  in  1 992, 
there  has  been  no  consumer  dissatisfaction  and  no  call  for  labeling.  Rather,  Americans 
have  salivated  over  their  ability  to  view  films  through  television,  and  more  recently  have 
welcomed  the  ability  to  access  films  through  video  rental.  Despite  the  complete  lack  of 
evidence  of  a  problem,  in  1993,  the  industry  itself  embarked  on  a  voluntary  labeling 
program,  sensitive  to  providing  full  disclosure  to  consumers  about  "panning  and 
scanning, "  colorization  and  editing  for  content  and  time. 

Today,  Mr.  Chairman,  under  the  voluntary  program,  the  videocassette  jacket  bears 
a  label  indicating  that  the  theatrical  version  has  been  adapted.   Furthermore,  the 
videocassette  itself  includes  a  label  at  the  beginning  of  the  movie  which  says,  "THIS  FILM 
HAS  BEEN  MODIFIED  FROM  ITS  ORIGINAL  VERSION.  IT  HAS  BEEN  FORMATTED 
TO  FIT  YOUR  TV,"  or  "THIS  FILM  IS  A  COLORIZED  VERSION  OF  THE  ORIGINAL 
BLACK  -AND-WHITE  FILM."  Studios,  TV  networks,  cable  networks,  TV  affiliated 
stations,  and  independent  TV  stations  have  been  using  these  labels  since  October  1993. 
In  fact,  we  did  a  survey  of  the  top  forty  video  rentals  listed  in  the  May  13  Billboard 
Magazine  and  found  that  90%  of  the  theatrical  films  that  are  now  in  video  are  already 
labeled. 


118 


This  industry-led  effort  is  providing  consumers  with  concise,  clear  labels  so  that 
viewers  are  actually  informed  rather  than  confused  by  scores  of  differing,  complex  and 
lengthy  messages.  The  marketplace  works.   It  is  not  appropnate  for  government  to  jump 
in  and  micromanage  this  issue.  This  is  not  only  a  bill  that  would  pose  terrible  problems  to 
the  film  industry,  it  would  be  a  devastating  precedent  that  would  threaten  the  bargaining 
and  contractual  process  that  underlies  our  copyright  system. 

H.R.  1248  is  not  a  simple  labeling  bill.  It  is  not  as  it  claims,  a  simple  measure  to 
inform  consumers  of  changes  made  to  a  film's  theatre  version.  In  addition  to  important 
technical  adaptations,  such  as  "panning  and  scanning"  described  above,  the  bill  also 
would  regulate  broadcaster  editing  for  community  taste  and  minimal  changes  made  in 
order  to  meet  a  preexisting  schedule.  Under  the  bill,  if  a  local  TV  station  edited  one 
minute  from  the  4  o'clock  movie  to  expand  its  news  hour  to  cover  a  breaking  local  story,  it 
would  have  to  check  on  whether  any  of  the  artistic  authors  had  objected,  and  if  so,  include 
a  label.  This  legislation  is  an  administrative  nightmare  for  not  only  a  video  store,  but 
America's  television  stations  and  will  clearly  impede  consumer  access  to  films. 

I.   H.R.  1248  WOULD  RESULT  IN  THE  DENIGRATION  OF  HOME  VIDEOS 

H.R.  1248  requires  notification  to  the  "artistic  author"  of  a  motion  picture  to 
determine  objections  to  any  "matenal  alteration"  to  a  film.   If  there  is  any  objection,  the  bill 
would  require  a  label.   For  example,  if  there  is  objection  to  "panning  and  scanning,"  the 


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label  must  bear  the  following  statement: 

"THIS  FILM  IS  NOT  THE  VERSION  ORIGINALLY  RELEASED.  IT  HAS  BEEN  PANNED 
AND  SCANNED.  THE  DIRECTOR  AND  CINEMATOGRAPHER  OBJECT  BECAUSE 
THE  ALTERATION  REMOVES  VISUAL  INFORMATION  AND  CHANGES  THE 
COMPOSITION  OF  THE  IMAGES."  This  label  would  be  affixed  to  the  video  box,  not 
once,  but  in  two  locations,  and  then  placed  on  the  shelf  in  a  video  store  to  advertise  the 
availability  of  the  movie. 

The  voluntary  labeling  program  that  covers  90%  of  the  films  distributed,  makes  this 
kind  government  mandated  requirement  totally  unnecessary.  A  consumer  is  informed,  but 
without  having  the  product  denigrated.  Under  the  dictates  of  H.R.  1248,  a  consumer  is 
likely  to  perceive  that  they  are  being  told  the  altered  version  is  an  inferior  product,  one 
they  would  not  enjoy  nearly  as  much  as  the  original  version  that  had  been  approved  by 
the  director  and  screenwriter.  These  denigrating  labels  would  be  confusing  to  customers 
and  deter  them  from  renting  or  purchasing  the  cassette. 

II.  H.R.  1248  COULD  IMPEDE  THE  DISTRIBUTION  OF  FILMS 

H.R.  1248  would  create  the  possibility  of  restraints  on  the  sale  of  films  after 
adaptation  for  television  or  home  video.  Just  as  a  product  is  ready  to  send  to  a  network  or 
video  retailer,  squabbling  over  whether  labeling  was  adequate  could  delay  the  availability 
of  the  product  until  it  was  stale  or  prevent  distribution  to  the  retailer  and,  more  importantly, 


120 


the  consumer. 


The  bill's  complicated,  time-consuming  process  of  tracking  down  the  artistic 
author(s)  to  determine  objections  to  "material  alterations"  poses  significant  impediments  to 
the  distribution  of  a  film.  The  delay  for  negotiating  an  acceptable  resolution  and 
repackaging  the  cassettes  with  an  adequate  label  could  deny  retailers  access  to  the 
product  during  the  peak  marketing  window  immediately  following  the  principal  theatre 
exhibition  promotion  campaign.  The  legislation  would  also  provide  for  an  injunction 
against  further  distribution  of  inadequately  or  improperly  labeled  products,  literally  pulling 
them  right  off  the  shelf. 

H.R.  1248  threatens  not  only  the  thousands  of  mostly  small  businesses  who 
provide  motion  pictures  in  videocassette  form  to  the  public,  but  even  more  importantly,  the 
customers  -  millions  of  Amencans  who  look  to  home  video  for  a  wide  variety  of  affordable 
and  convenient  family  entertainment. 


ill.  H.R.  1248'S  RECOGNITION  OF  MORAL  RIGHTS  THREATENS  OUR  THRIVING 
FILM  INDUSTRY 


Along  with  the  other  members  of  CACC,  VSDA  strongly  opposes  H.R.  1248 
because  applying  moral  rights  to  motion  pictures  sets  a  dangerous  precedent  and 
threatens  our  thriving  U.S.  copyright  system.  We  are  concerned  that  H.R.  1248  is  sought, 
at  least  in  part,  to  strengthen  the  artist's  economic  bargaining  power  vis-a-vis  the  studios 


121 


with  "moral  rights."  To  the  extent  this  is  true,  the  Act  could  threaten  the  constitutional 
goal  of  promoting  the  production  and  dissemination  of  copyrighted  works  and  the 
traditional  practices  and  relationships  that  are  fundamental  to  the  daily  operation  of 
copyright  intensive  industries  in  the  U.S. 

If  writers  or  directors  are  given  'moral  rights,"  they  could  insist  that  their  films  be 
letter-boxed,  rather  than  "panned  and  scanned."  Letter-boxing  is  the  technique  used  to 
present  a  film  on  a  square  TV  screen  by  diminishing  the  size  of  the  picture,  leaving  thick 
black  lines  across  the  top  and  bottom  of  the  screen.    Anyone  who  has  ever  spent  any 
time  in  a  video  store  can  attest  to  the  fact  that,  generally,  the  public  finds  letter-boxing  a 
distracting  interference  with  their  enjoyment  of  the  film.  In  addition,  writers  and  directors 
could  prevent  conversion  of  films  to  videocassette  in  any  format,  claiming  that  both  letter- 
boxing  and  panning  and  scanning  adulterate  the  "artistic  integrity"  of  their  films. 

Writers  and  directors  could  also  leverage  their  "moral  rights"  to  increase 
compensation.  The  studios  would  pass  on  that  increased  cost  of  production  to 
distributors  and,  in  turn,  to  video  retailers.  We  -  the  retailers  -  would  have  to  absorb  that 
increased  cost  (although  our  margin  of  profit  is  far  smaller  than  those  of  screenwriters  and 
directors)  and  pass  it  on  to  our  customers. 

Finally,  negotiations  over  "moral  rights"  could  lead  to  very  substantial  delays  in  the 
release  date  of  a  videocassette.  That  is  the  most  likely  outcome  for  many  films.  Almost 


122 


five  years  passed  before  "E.T."  was  released  on  video  because  of  such  negotiations;  not 
every  film  has  the  remarkable  longevity  of  that  picture.  For  most  films,  delay  could 
significantly  reduce  the  market  demand  because  more  recently  publicized  films  tend  to 
displace  consumer  interest  in  older  ones. 

The  gravity  of  these  concerns  is  part  of  the  reason  the  Committee  for  America's 
Copyright  Community  came  together  -  to  ensure  the  continued  vitality  of  the  American 
copyright  system.  The  potential  harms  outlined  above  demonstrate  that  embarking  the 
U.S.  "moral  rights"  regime  in  the  area  of  films,  sets  a  dangerous  precedent  and  threatens 
our  currently  thriving  marketplace  of  copyrighted  works.  Proponents  of  this  legislation 
have  not  demonstrated  a  compelling  public  interest  to  justify  such  a  radical  departure  from 
traditional  copyright  law  which  has  produced  a  flourishing  creative  industry.  The 
remainder  of  my  testimony  will  focus  on  the  strength  of  our  current  system  and  the  threat 
posed  by  proposals  such  as  H.R.  1248. 

IV.        AMERICA'S  COPYRIGHT  SYSTEM  IS  THRIVING. 

The  existing  system  for  distributing  films  through  theatres,  home  videocassette, 
television  and  cable  broadcasts  has  been  an  unparralled  success  in  making  these  films 
widely  accessible  to  the  public.   It  is  the  envy  of  the  world.  This  is  also  the  case  for  the 
rest  of  America's  copyright  industries. 


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Copyright  industries  are  one  of  the  largest  and  fastest  growing  segments  of  the 
U.S.  economy.  They  contribute  more  to  the  U.S.  economy  in  terms  of  value  added  to 
Gross  Domestic  Product  (GDP)  than  any  single  manufacturing  sector  and  more  than  most 
industrial  sectors.  In  1993,  they  accounted  for  3.7  percent  ($238.6  billion)  of  U.S.  GDP. 

The  U.S.  leads  the  worid  in  entertainment,  news,  business  infonnation,  books 
magazine  publishing,  sound  recording,  motion  pictures,  advertising,  video  and  other  film 
products,  computer  software  packaging,  and  virtually  all  other  areas  of  copyrighted  works. 
Our  country's  global  preeminence  in  copyright  works  is  reflected  in  1 992's  foreign  sales, 
which  exceeded  $39.5  billion,  an  increase  of  more  than  9%  from  1991. 

Here  are  some  examples  of  America's  preeminence  in  the  copyrighted  works 
arena: 

•  American  films  dominate  theatres  and  TV  screens  throughout  the  worid.   In  1 992, 
U.S.  films  returned  an  estimated  $4  billion  in  surplus  balance  of  trade. 

•  In  1993,  woridwide  revenues  from  ail  media  -  theatrical,  television,  Pay-TV  and 
home  video  -  were  $20.4  billion,  up  7%  (1.4  billion)  from  1992. 

•  The  U.S.  recording  industry  is  one  of  the  most  influential,  creative  and  visible 
industries  in  the  worid.  In  1993,  U.S.  record  companies  generated  $10  billion  in 
domestic  sales,  and  worldwide  record  sales  reached  $30.5  billion.  As  a  trade 
commodity,  foreign  sales  of  U.S.  sound  recordings  accounted  for  an  estimated 
$12.3  billion. 

•  The  U.S.  is  the  worid's  largest  market  for  printed  products  and  the  second  largest 
exporter  of  printed  products,  with  1993  shipments  of  more  than  $4  billion.  . 


124 


V.  THE  MARKETPLACE  AND  CONTRACTUAL  AGREEMENTS  PROMOTE  OUR 
THRIVING  SYSTEM 


We  believe  the  success  of  our  copyright  system  is  attributable,  in  large  part,  to  the 
fact  that  our  copyright  law  establishes  an  economic  framework  to  encourage  the  creation 
and  dissemination  of  new  works.  First,  the  Act  gives  creators  the  financial  incentive  to 
devote  resources  and  energy  to  producing  creative  works.  They  know  they  will  have  the 
opportunity  to  secure  financial  compensation  for  the  exclusive  rights  granted  them  under 
the  Act. 

Second,  the  Copyright  Act  provides  the  predictability  and  certainty  that  business 
activities  will  be  governed  by  the  objective  four  comers  of  business  agreements.  Finally, 
the  Act  allows  owners  and  users  the  commercial  flexibility  to  devise  and  implement  their 
own  business  relationships  to  make  works  available  to  the  public.  This  flexibility  has 
allowed  copyrighted  works  to  be  made  available  to  the  public  through  a  wide  range  of  new 
media  and  delivery  systems. 

H.R.  1248,  with  its  burdensome  labeling  and  notification  requirements,  runs  counter 
to  the  long-standing  practice  in  the  U.S.  that  business  relations  should  be  governed  by  the 
marketplace  -  a  system  under  which  the  copyrighted  works  industries  have  thrived. 

In  addition  to  the  voluntary  film  labels,  directors,  screenwnters  and 
cinematographers  routinely  negotiate  contractual  terms  regarding  the  work  to  be 


125 


performed,  including  compensation  and  residuals.  Similarly,  adaptations  made  to  a  film 
following  its  initial  release  are  clearly  an  appropriate  subject  for  negotiation.  Through 
avenues  of  both  collective  and  individual  bargaining,  directors,  screenwriters  and 
cinematographers  are  able  to  effectively  bargain  on  these  issues. 

The  collective  bargaining  agreement  provides  a  bundle  of  rights  to  every  director, 
regardless  of  his  track  record  or  whether  the  film  he  makes  is  a  success.  These 
agreements  also  give  every  director  the  right  to  participate  in  the  fiim-to-video  adaptation. 
For  example,  in  1987  negotiations,  the  DGA  and  the  Alliance  of  Motion  Picture  and 
Television  included  a  contract  provision  requiring  producer  consultation  with  a  director 
regarding  adaptation  techniques. 

Other  copyright  industries  also  rely  on  the  marketplace  and  contractual 
agreements.  H.R.  1248  is  clearly  a  first  step  toward  a  moral  rights  regime  which  could 
stymie  technological  innovation,  bring  the  disthbution  of  copyrighted  works  to  a  standstill 
and  strike  a  devastating  blow  to  the  predictability  and  certainty  that  is  critical  to  the 
copyright  system. 


VI.  ENACTMENT  OF  H.R.  1248  WOULD  SET  A  TERRIBLE  PRECEDENT  WITH 
DEVASTATING  IMPLICATIONS  FOR  THE  US.  COPYRIGHT  COMMUNITY. 


A  motion  picture  is  a  collaborative  effort  derived  from  the  creative  energy  of 
multiple  parties.  Similarly,  books,  magazines,  sound  recordings,  newspapers,  databases 

10 


OQ_oe"y     Qc      c 


126 


publishing,  software  pacl<aging  and  advertisements  are  collaborative  efforts  in  which 
numerous  individuals  contribute  to  a  creative  work.  If  H.R.  1248-type  requirements  were 
applied  to  the  broad  range  of  these  copyrighted  industries,  a  breakdown  in  the  publishing 
and  distribution  of  copyrighted  works  could  occur.  For  example: 

•  Would  a  newspaper  be  unable  to  submit  its  daily  edition  for  edited  electronic 
publication  because  it  was  unable  to  comply  with  labeling  and  notification  of  its  40 
reporters? 

•  Would  a  magazine  miss  its  printing  deadline  because  it  had  not  been  able  to  notify 
a  freelance  photographer  that  last  year's  picture  needed  to  be  cropped  for  this 
week's  story? 

•  Would  the  publisher  of  a  textbook  be  unable  to  meet  a  deadline  to  update  a 
textbook  to  reflect  new  developments  in  science,  because  it  could  not  reach 
agreement  with  the  principal  editor  on  the  content  of  the  label? 

•  Would  an  advertiser  be  unable  to  adopt  an  ad  for  next  month's  publication  because 
of  burdensome  requirements  to  notify  an  array  of  contributors  to  the  ad,  including 
writers,  graphic  artists,  creative  directors,  photographers  and  others? 

•  Would  a  recording  company  be  unable  to  rearrange  the  order  of  an  album's  songs 

11 


127 


for  a  second  release? 

Government-mandated  labeling  of  films  may  strike  some  as  a  narrow  exception  to 
the  American  tradition  of  permitting  the  parties  to  make  their  arrangements  and  settle  their 
disputes  by  contract.   However,  at  its  heart,  this  proposal  seeks  to  undo  the  very  system 
which  carefully  balances  risk  and  reward  and  has  made  America  the  undisputed  leader  in 
the  creative  industries. 


VII.  THE  MARKETPLACE  IS  THE  BEST  BAROMETER  OF  CHANGES  MADE  TO  A  FILM 
POST-RELEASE. 


The  marketplace  responds  to  meet  consumer  needs  regarding  motion  pictures. 
Consumers,  are  the  best  check  on  post-publication  changes  made  to  copyrighted  works. 
Consumers  find  that  technical  adaptations  of  a  movie  -  for  the  T.V.  saeen  and/or 
colorization  -  enhance  their  film  enjoyment.  To  meet  consumer  demand,  many  movies 
today  are  available  on  videocassette  in  both  original  and  made-for-T.V.  form.  Adaptation 
of  films  give  consumers  more  choice.  In  fact,  there  has  been  no  demonstration  of 
consumer  dissatisfaction  with  the  changes  that  would  be  regulated  under  this  bill.  When 
consumers  are  dissatisfied,  they  will  voice  their  displeasure  and  the  market  will  respond 
without  unnecessary  government  intrusion. 

One  way  the  market  responds  is  by  giving  consumers  a  choice.  For  example,  a 
consumer  can  walk  into  a  Blockbuster  and  rent  either  the  colorized  version  of 

12 


128 

"Casablanca"  or  the  original  black  and  white  version  -  whichever  suits  their  taste.  As  you 
know,  the  motto  of  the  home  video  industry  has  long  been  "freedom  of  choice  for 
American  consumers"  -  freedom  to  rent  or  purchase  the  films  they  wish  to  see,  when  they 
want  to  see  them. 


VIII.   H.R.  1248  RAISES  SIGNIFICANT  FIRST  AMENDMENT  QUESTIONS  AND  IS 
INCOMPATIBLE  WITH  THE  U.S.  LANHAM  ACT 


The  First  Amendment  and  the  Copyright  Clause  share  the  mutual  goal  of 
increasing  the  flow  of  information  to  the  public.  This  important  constitutional  goal  is 
thwarted  by  both  the  labeling  and  notification  requirements  in  H.R.  1248.  Even  in  the 
case  of  commercial  speech,  such  as  a  videocassette  box  which  advertises  the  film,  the 
litmus  test  for  the  protection  of  commercial  speech,  laid  out  by  the  Supreme  Court  in 
Central  Hudson  Gas  and  Electric  Corporation  v.  Public  Service  Commission  of  New  York, 
447  U.S.  55  (1980),  is  that  the  restrictions  on  speech  must  be  the  least  intrusive  to  serve 
the  governmental  interest  asserted.  The  requirements  of  H.R.  1248  are  over-  broad, 
unnecessary  and  likely  to  confuse  consumers. 

This  bill  also  masquerades  as  a  consumer  bill.  In  fact,  it  is  nothing  of  the  kind. 
Modified  versions  of  films  are  already  labeled  under  the  voluntary  program  to  ensure  the 
consumer  is  not  confused.  H.R.  1248  provides  that  a  third  party  can  be  designated  by  the 
artistic  author  to  object  to  a  film.  Why  should  a  film  be  labeled  based  on  the  opinion  of  a 
third  party?  Are  they  looking  out  for  the  consumer? 

13 


129 


Finally,  Section  43(a)  of  the  Lanham  Act  already  provides  remedies  to  ensure  that 
consumers  are  not  deceived. 

Not  only  does  the  Lanham  Act  exist  to  protect  consumers  from  misrepresentation,  it 
also  provides  remedies  for  individual  artists  whose  reputation  is  injured  as  a  result  of 
misrepresentation.  In  the  event  a  director,  screenwriter,  or  cinematographer  felt  that  edits 
had  seriously  altered  his  work,  he  or  she  could  pursue  relief  under  the  Lanham  Act.  The 
landmark  case  on  this  subject  is  Gilliam  v.  ABC,  Inc..  538  F2d  14  (2nd  Cir.  1976).    In  that 
case,  the  court  found  that  an  allegation  by  Monty  Python's  creator  of  a  mutilation  of  his 
work  -  24  minutes  of  a  90  minute  Monty  Python  work  were  edited  out  by  ABC  -  stated  a 
cause  of  action  under  Sec.  43(a)  of  the  Lanham  Act,  15  U.S.C.  1 125(a). 

In  a  March  4,  1 992  letter,  then  Commerce  Department  General  Counsel  Wendell 
Wilkie  recognized  that  the  broad  application  of  Section  43  has  protected  authors  from 
misrepresentation.'  It  opposed  the  amendment  of  the  Lanham  Act  to  create  additional  rights 
for  film  artists.^  In  a  1989  Patent  and  Trademark  Office  report  to  Congress,  it  found  that 
Section  43  is  functioning  in  the  way  that  Congress  intended,  as  a  broad,  unifonn  law 
regulating  unfair  competition,  and  that  amending  the  law  to  cover  one  specific  industry  was 


'  March  4,  1992  Letter  Of  Commerce  Department  General  Counsel,  Wendell  Wilkie  to 
Honorable  William  Hughes,  Chairman  of  the  Subcommittee  on  Intellectual  Property  and  Judicial 
Administration,  regarding  H.R.  3051  ("Film  Disclosure  Act  of  1991"). 

'Id. 

14 


130 


inappropriate.'  It  also  concluded  that  the  legislation  would  frustrate  the  work  for  hire  doctrine 
applicable  to  motion  pictures  under  U.S.  copyright  law  and  film  industry  contractual  practice. 

VIII.  CONCLUSION 

Mr.  Chainnan,  VSDA  and  the  Committee  for  America's  Copyright  Community  oppose 
H.R.  1248.  We  submit  that  the  current  system  works.  It  works  because  over  the  last  two 
hundred  years,  it  has  encouraged  the  creation  and  dissemination  of  works  which  has  made 
our  copyright  industry  a  national  and  world  leader.  It  is  a  system  that  provides  both  flexibility 
and  predictability,  allowing  parties  to  create  contracts  that  adapt  to  meet  new  technologies. 
The  industry-wide  voluntary  labeling  program  and  the  collective  bargaining  agreements  are 
perfect  examples.  The  marketplace,  not  Congress,  should  respond  to  the  consumers. 

Congress  should  continue  to  let  this  marketplace  operate  under  its  thriving  system. 
H.R.  1248  is  not  only  a  threat  to  our  country's  film  industry,  it  is  a  threat  to  our  entire 
copyright  system.  In  order  to  protect  consumers.  Congress  should  continue  to  reject  efforts 
to  recognize  moral  rights  across  a  broad  range  of  copyrighted  works.  Starting  down  the  road 
of  moral  rights  will  only  bring  the  dissemination  of  copyrighted  works  to  a  grinding  halt. 


'  "Trademark  Act  of  1946  and  Technologies  for  Alteration  of  Motion  Pictures,"  1989 
Patent  and  Trademark  OflSce  Report  to  the  Subcommittee  on  Intellectual  Property  and  Judicial 
Administration  of  the  House  of  Judiciary  Committee. 

15 


131 


COMMIHEE  FOR  AMERICA'S  COPYRIGHT  COMMUNITY 


1001 G  Street,  NW,  Suite  900  East 

Washington,  DC  20001 

202/393-1010 

Fax:  202/393-5510 


CACC  Member  List 

The  American  Fim  Marketing  Association 

Association  of  American  Publishers 

Association  of  Independent  Television  Stations,  Inc. 

Association  of  National  Advertisers 

Magazine  Publishers  of  America 

Meredith  Corporation 

Motion  Picture  Association  of  America,  Inc. 

National  Association  of  Broadcasters 

The  Reader's  Digest  Association 

Recording  Industry  of  America,  Inc. 

Time  Warner,  Inc. 

Times  Mirror  Co. 

Turner  Broadcasting 

Viacom  International 

Video  Software  Dealers  Association 


132 

Mr.  MOORHEAD.  Mr.  Weller. 

STATEMENT    OF    MICHAEL    WELLER,    PLAYWRITE,    SCREEN- 
WRITER, AND  MEMBER,  WRITERS  GUILD  OF  AMERICA,  EAST 

Mr.  Weller.  I  have  got  my  remarks  beginning  with  good  morn- 
ing, Mr.  Chairman — I  think  it  is  afternoon  now 

Mr.  MoORHEAD.  Not  quite. 

Mr.  Weller  [continuing].  Members  of  the  subcommittee,  and 
thank  you  for  sponsoring  this  hearing  on  legislation  which,  in  my 
view,  cuts  to  the  heart  of  our  system.  That  may  sound  like  pretty 
big  talk,  but  in  my  few  minutes  here  I  hope  to  suggest  a  reason 
why  it  isn't. 

I  am  not  Harrison  Ford.  I  am  not  Sylvester  Stallone.  I  am  not 
even  Tom  Cruise,  alas.  What  I  am  is  one  of  the  legion  of  folks  who 
gives  them  things  to  say  and  stories  to  act  in.  My  name  is  Michael 
Weller. 

I  am  a  writer,  and  I  wear  two  hats.  Wearing  one,  I  write  movie 
scripts;  and  I  do  this  under  the  protection  of  the  Writers  Guild  of 
America  East.  With  the  other  hat,  I  write  plays  for  the  stage.  This 
work  is  protected  by  the  Dramatists  Guild  of  America,  on  whose 
governing  board  I  serve. 

I  have  had  luck  wearing  both  hats.  My  plays  have  won  awards 
and  have  been  performed  all  over,  here  and  abroad — most  fre- 
quently, "Moonchildren,"  "Loose  Ends,"  "Fishing,"  "Spoils  of  War." 
And  several  films  I  have  worked  on  are  held  in  high  esteem — 
"Hair"  and  "Ragtime"  in  particular.  I  even  won  an  Academy  Award 
nomination.  In  other  words,  as  writers  go,  I  am  a  happy  camper 
and  a  very  lucky  one. 

The  term  writer  has  become  so  commonplace  and  the  word  artist 
so  carelessly  flung  about  in  recent  years,  it  might  be  worth  a  few 
seconds  of  your  time  for  me  to  describe  what  I  actually  do. 

I  am  a  craftsperson,  an  artisan,  a  fabricator.  I  make  things.  Ex- 
actly the  way  a  leather  worker  makes  belts  or  a  furniture  maker 
makes  a  chair,  I  make  stories.  Instead  of  leather  or  wood,  my  me- 
dium is  words.  I  shape  them,  cut  them,  polish  and  trim  until  I  have 
made  a  story  that  feels  interesting,  durable  and  true. 

We  are  here  today  to  discuss  the  fate  of  what  I  make.  I  will  ad- 
dress my  main  remarks  to  H.R.  989,  the  Copyright  Term  Extension 
Act,  but  I  would  also  like  to  state  my  position  and  the  position  of 
the  Writers  Guild  of  America  East  on  H.R.  1734  and  H.R.  1248,  the 
Film  Preservation  and  the  Film  Disclosure  Act. 

I  support  any  effort  to  protect  my  work  and  my  colleagues'  work 
from  mutilation  by  future  owners  and  exploiters. 

I  mentioned  that  I  have  written  the  screenplay  of  a  film  called 
"Hair."  Let  me  relate  briefly  how  the  film  came  about. 

It  was  because  of  the  passion  of  one  man,  the  director  Milos 
Forman,  a  Czech.  While  living  under  a  Communist  regime,  he  vis- 
ited New  York.  He  was  young,  adventurous  and  penniless  and 
ended  up  sleeping  for  several  nights  in  Central  Park  where  he  was 
befriended  by  a  bunch  of  people  called  hippies.  The  anarchy  of 
those  few  nights,  the  joy,  the  friendship,  effected  him  profoundly. 

When  he  made  the  film  "Hair"  years  later,  it  was  his  way  of  cele- 
brating the  spirit  of  freedom  he  felt  that  night,  of  sending  a  mes- 
sage home  to  his  fellow  countrymen  still  living  behind  the  Iron 


133 

Curtain,  a  message  that  in  a  free  society  joy  and  trust  are  possible, 
unlike  the  despair  and  paranoia  that  haunt  a  country  under  totali- 
tarian rule. 

It  came  from  his  heart,  this  film,  and  it  was  intended  in  a  small 
way  to  weaken  the  hold  of  an  oppressive  regime  over  the  minds  of 
people  thirsty  for  freedom. 

The  original  film  had  22  songs.  When  it  was  shown  on  television, 
only  11  survived.  The  other  11  were  cut.  You  might  say  that  what 
the  audience  saw  was  half  "Hair,"  a  celebration  of  half  freedom. 

And  yet  it  was  called  "Hair,"  the  screenplay  was  credited  to  me 
and  the  direction  to  Milos  Forman.  The  most  fundamental  inten- 
tion of  the  film  was  violated.  The  spirit  it  was  made  to  celebrate, 
the  energy  embodied  in  its  songs,  virtually  everything  it  stood  for 
was  violated  on  television. 

I  am  aware  that  an  argument  can  be  made  that  it  is  entirely 
within  the  rights  of  purchasers  to  do  what  they  please  with  the 
work  they  buy.  Just  as  it  is  arguably  within  the  rights  of  million- 
aire X,  who  owns  a  Rembrandt  that  won't  fit  the  wall  where  he 
wants  it  hung,  to  cut  6  inches  from  the  top  and  a  foot  from  the 
side.  In  fact,  he  can  cut  it  in  half  and  hang  it  in  two  separate 
rooms  if  he  pleases.  But  does  he  now  own  two  Rembrandts?  No, 
what  he  owns  is  a  Rembrandt,  mutilated,  altered,  and  destroyed. 

The  law  may  support  his  right,  as  an  owner,  to  do  this,  but 
should  it  support  his  right  to  advertise  it  subsequently  as  the  work 
of  artist  Y  or  Z?  I  would  argue  no. 

Simple  logic  tells  us  that  an  artist  should  be  allowed  to  protect 
himself  from  such  abuse.  If  inches  are  lopped  off  his  work,  give  him 
a  chance  to  warn  the  public  that  what  they  are  seeing  is  no  longer 
his.  Let  viewers  know,  especially  discerning  viewers  who  might  be 
in  a  position  to  employ  him  now  or  at  some  future  date,  that  what 
they  saw  doesn't  represent  his  abilities.  It  may  even,  in  some  cases, 
harm  his  reputation. 

As  regards  preservation  of  our  firm  heritage,  a  nation  is  es- 
teemed and  remembered  mainly  by  the  stories  it  tells  about  itself. 
America's  undeniable  contribution  to  storytelling  is  film,  and  films 
deteriorate.  With  them  a  cherished  record  of  our  heritage  vanishes. 
The  Government  can  help  prevent  this  and  for,  relatively  speaking, 
a  pittance. 

We  would  not  allow  the  Lincoln  Memorial  to  crumble.  We  provide 
a  budget  to  ensure  that  Lincoln's  memory  is  honored  in  the  form 
of  maintenance.  I  encourage  you  to  throw  a  few  dollars  to  the 
maintenance  of  another  great  heritage  of  ours,  film. 

Now  to  my  main  area  of  concern,  copyright.  You  have  heard  tes- 
timony describing  the  hard  arguments  which  are  economic.  We  are 
basically  hemorrhaging  money  for  20  years  to  Europe.  I  would  like 
to  talk  about  the  testimony  to  the  effect  that  the  artist's  work  is 
his  heritage,  his  legacy,  the  means  by  which  he  hopes  to  provide 
for  his  children  and  his  children's  children. 

Even  in  writing  film,  for  which  I  hold  no  copyright,  I  count  on 
the  duration  of  the  film  owner's  copyright,  which  ensures  that  I  am 
compensated  for  future  exploitation  of  my  work  on  television,  video- 
cassettes  and  possible  merchandising  or  publication,  the  use  of  film 
clips  and  so  on.  The  duration  of  these  rights  is  my  main  concern 
today. 


134 

I  have  two  young  sons,  8  and  6.  They  seem  proud  of  the  work 
I  do.  One  even  shows  signs  of  being  a  bit  of  a  storyteller  himself — 
on  occasion,  quite  a  big  storyteller. 

If  either  of  them  should  choose  to  launch  his  little  boat  on  the 
same  dangerous  waters  as  dad,  I  would  like  him  to  expect  that  at 
the  end  of  a  lifetime  of  hard  work  in  the  arts  he  could  anticipate 
a  certain  degree  of  respect  for  his  accomplishments  and  that  this 
respect  would  be  reflected  in  the  law. 

But,  at  the  moment,  I  am  compelled  to  explain  things  as  follows: 
I  make  stories  for  a  living.  If  I  made  a  chair  or  a  shoulder  bag  or 
a  pot,  it  would  belong  to  me  for  as  long  as  I  lived  or  until  I  chose 
to  sell  it.  It  would  be  mine  to  give  to  my  children,  and  this  would 
become  theirs  to  give  to  their  children  and  so  on. 

Instead,  I  make  stories;  and  they  can  only  belong  to  my  family 
until  50  years  after  my  death.  When  my  older  son,  who  is  very 
smart  and  curious,  asks  me  why  my  stories  can  be  taken  away 
after  50  years  I  say  it  is  the  law. 

When  he  asks  why  can  laws  allow  things  to  be  taken  from  peo- 
ple, I  try  to  explain  what  laws  are,  how  they  come  about  and  why 
we  are  lucky  to  live  under  a  system  that  provides  so  many  ways 
to  alter  and  improve  them,  ways  such  as  the  hearing  we  are  in- 
volved in  today. 

But  his  eyes  glaze  over  at  these  explanations.  He  is  too  young 
to  understand  and  the  logic  is  too  complicated  and,  finally,  irrele- 
vant to  the  essential  issue  which  is  property,  be  it  intellectual  or 
physical.  As  I  said  earlier,  H.R.  989  is  about  something  at  the  very 
heart  of  our  system.  It  is  about  property. 

Imagine  for  a  moment  how  it  would  feel  if  your  grandmother  had 
left  you  an  exquisite  quilt  of  her  own  making  and  after  a  certain 
time  government  officials  appeared  at  your  door  and  said  this  quilt 
has  been  in  your  family  long  enough,  now  it  belongs  to  the  world. 
Yet  that  is  exactly  what  happens  to  the  things  I  make  during  my 
life. 

H.R.  989  is  about  one  thing:  property.  It  is  about  how  soon  after 
people  like  me  have  made  what  we  make  can  the  Government,  by 
law,  allow  it  to  be  taken  from  us.  At  the  moment,  they  must  wait 
only  50  years.  It  is  a  small  thing  to  ask  that  we  be  allowed  to  keep 
it  in  the  family  for  another  20.  It  is  a  modest  request.  I  urge  you 
to  grant  it. 

Thank  you  for  this  opportunity,  and  I  hope  your  efforts  will  re- 
sult in  a  change  of  law  that  I  can  hold  up  to  my  sons  as  an  exam- 
ple of  why  our  system  and  the  extraordinary  vigor  of  the  arts  it 
generates  are  the  envy  of  the  world. 

[The  prepared  statement  of  Mr.  Weller  follows:] 


135 

Prepared  Statement  of  Michael  Weller,  Playwright,  Screenwriter,  and 
Member,  Writers  Guild  of  America,  East 

Good  Morning  Chairman  Moorhead,  Members  of  the  Subcommittee,  and 
thank  you  sponsoring  this  hearing  on  legislation  which,  in  my  view,  cuts  to  the 
heart  of  our  system.  That  may  sound  like  pretty  big  talk,  but  in  my  few 
minutes  here  I  hope  to  suggest  a  reason  why  it  isn't. 

I  am  not  Harrison  Ford.  I  am  not  Sylvester  Stallone.  1  £im  not  even  Tom 
Cniise,  alas.  What  I  am  is  one  of  the  legion  of  folks  who  gives  them  things  to 
say  and  stories  to  act  in.   My  name  is  Michael  Weller. 

I  am  a  writer  with  two  hats.  Wearing  one,  I  write  movie  scripts.  I  do  this 
under  the  protection  of  the  Writers  Guild  of  America,  East.  With  the  other  hat, 
I  write  plays  for  the  stage.  This  work  is  protected  by  the  Dramatists  Guild  of 
America,  on  whose  governing  board  I  serve. 

IVe  had  luck  wearing  both  hats.  My  plays  have  won  awards,  and  have 
been  performed  all  over,  here  and  abroad—most  frequently  "Moonchildren," 
"Loose  Ends,"  "Fishing"  and  "Spoils  of  War."  Several  films  IVe  worked  on  are 
held  in  high  esteem~"Hair"  and  "Ragtime"  in  particular.     IVe  even  won  an 


136 


Academy  Award  nomination.      In  other  words,   as  writers  go,  I'm  a  happy 
camper. 

The  term  writer  has  become  so  commonplace  and  the  word  artist  so 
carelessly  flung  about  in  recent  years,  it  might  be  worth  a  few  seconds  of  your 
time  for  me  to  describe  what  I  actually  do. 

I'm  a  craftsperson,  an  artisan,  a  fabricator.  I  make  things.  Exactly  the 
way  a  leather-worker  makes  belts  or  a  furniture  maker  makes  a  chair,  I  make 
stories.  Instead  of  leather  or  wood,  my  medium  is  words.  I  shape  them,  cut 
them,  polish  and  trim,  until  IVe  made  a  story  that  feels  interesting,  durable 
and  true. 

,  We  are  here  today  to  discuss  the  fate  of  what  I  make.  I  will  address  my 
main  remarks  to  H.R.  989  -  Copyright  Term  Extension  Act  of  1995.  But  I 
would  also  like  to  state  my  position  and  the  position  of  Writers  Guild  of 
America,  East  on  H.R.  1734  -  National  Film  Preservation  Act  of  1995  and  H.R. 
1248  -  Film  Disclosure  Act  of  1995. 

I  support  any  effort  to  protect  my  work  from  mutilation  by  future  owners 
and  exploiters.  1  mentioned  that  I  had  written  the  screenplay  of  a  film  called 
"Hair." 

Let  me  relate  briefly  how  the  film  came  about.  It  was  because  of  the 
passion  of  one  man,  the  director  Milos  Forman,  a  Czech.  While  living  vmder  a 
Communist  regime,  he  visited  New  York.  He  was  young,  adventiirous  and 
penniless,  and  ended  up  sleeping  for  several  nights  in  Central  Park,  where  he 
was  befriended  by  a  bunch  of  people  called  hippies.  The  anarchy  of  those  few 
nights,  the  joy,  the  friendship,  effected  him  profoundly. 


137 


When  he  made  the  film  "Hair"  years  later,  it  was  his  way  of  celebrating 
the  spirit  of  freedom  he  felt  that  night,  of  sending  a  message  home  to  his  fellow 
countrymen  still  living  behind  the  Iron  Curtain,  a  message  that  in  a  free  society 
joy  and  trust  are  possible,  unlike  the  despair  and  paranoia  that  haunt  a 
country  under  totalitarian  rule. 

It  came  from  his  heart,  this  film,  and  it  was  intended  in  its  small  way,  to 
weaken  the  hold  of  an  oppressive  regime  over  the  minds  of  people  thirsty  for 
freedom. 

The  original  film  had  twenty-two  songs.  When  it  was  shown  on 
television,  only  eleven  survived.  The  other  eleven  were  cut.  You  might  say  that 
what  the  audience  saw  was  "Half-Hair."  A  celebration  of  half-freedom. 

And  yet  it  was  called  "Hair,"  the  screenplay  was  credited  to  me,  and  the 
direction  to  Milos  Forman.  The  most  fundamental  intention  of  the  film  was 
violated,  the  spirit  it  was  made  to  celebrate,  the  energy  embodied  in  its  songs— 
virtually  everjrthing  it  stood  for—was  violated  on  television. 

I'm  aware  an  argument  can  be  made  that  it  is  entirely  within  the  rights  of 
purchasers  to  do  what  they  please  with  the  work  they  buy.  Just  as  it  is 
arguably  within  the  rights  of  millionaire  X  who  owns  a  Rembrandt  that  won't  fit 
the  wall  where  he  wants  it  hung,  to  cut  six  inches  firom  the  top  and  a  foot  from 
the  side.  In  fact  he  can  cut  it  in  half  to  hang  in  two  separate  rooms,  if  it 
pleases  him.  But  does  he  now  oviTi  two  Rembrandts?  No.  What  he  owns  is  a 
rembrandt,  mutilated,  altered  and  destroyed. 


138 


The  law  may  support  his  right,  as  an  owner,  to  do  this,  but  should  it 
support  his  right  to  advertise  it  subsequently  as  the  work  of  artist  Y  or  Z?  I 
would  argue  "No." 

Simple  logic  tells  that  an  artist  should  be  allowed  to  protect  himself  from 
such  abuse.  If  inches  are  lopped  off  his  work,  give  him  a  chance  to  warn  the 
public  that  what  they  are  seeing  is  no  longer  his.  Let  viewers  know,  especially 
discerning  viewers  who  might  be  in  a  position  to  employ  him  now,  or  at  some 
future  date,  that  what  they  saw  does  not  represent  his  abilities.  It  may  even,  in 
some  cases,  harm  his  reputation. 

As  regards  preservation  of  our  film  heritage:  a  nation  is  esteemed  and 
remembered  mainly  by  the  stories  it  tells  about  itself.  America's  undeniable 
contribution  to  storytelling  is  film,  and  films  deteriorate.  With  them,  a 
cherished  record  of  our  heritage  vanishes.  The  government  can  help  prevent 
this  and— for  relatively  speaking—a  pittance.  We  would  not  allow  the  Lincoln 
Memorial  to  crumble.  We  provide  a  budget  to  insure  that  Lincoln's  memory  is 
honored  in  the  form  of  maintenance.  I  encourage  you  to  throw  a  few  dollars  to 
the  maintenance  of  another  great  heritage  of  ours,  film. 

Now  to  my  msdn  area  of  concern  today— copyright.  You  will  have  heard 
testimony  describing  the  ineqmty  of  our  current  copyright  protection  of  fifty 
years  after  an  artist's  death  vs.  that  of  the  common  market  countries  of 
Europe,  which  lasts  for  seventy  years.  You've  heard  that  our  current  laws 
amount  to  a  twenty  year  gift  to  the  Eiiropean  Union,  since  that's  how  long  they 
can  use  our  artists'  works  for  free,  while  we  have  to  pay  for  the  use  of  theirs. 
We  are  basically  hemorrhaging  money,  and  for  nothing  in  return. 


139 


You  have  heard  testimony  to  the  effect  that  an  artist's  work  is  his  legacy, 
the  means  by  which  he  hopes  to  provide  for  his  children,  and  his  children's 
children.  Even  in  writing  film,  for  which  1  hold  no  copyright,  I  count  on  the 
duration  of  the  film  owners'  copyright  which  ensures  that  I  am  compensated 
for  future  exploitation  of  my  work  on  television,  videocassettes,  £ind  possible 
merchandising  or  publication,  the  use  of  film  clips  and  so  on.  The  duration  of 
these  rights  is  my  main  concern  today. 

I  have  two  young  sons,  eight  and  six.  They  seem  proud  of  the  work  1  do. 
One  even  shows  signs  of  being  a  bit  of  a  storyteller  himself.  On  occasion  quite 
a  big  storyteller. 

If  either  of  them  should  chose  to  launch  his  little  boat  on  the  same 
dangerous  waters  as  Dad,  I'd  like  him  to  expect  that  at  the  end  of  a  lifetime  of 
hard  work  in  the  arts,  he  could  anticipate  a  certain  degree  of  respect  for  his 
accomplishments  and  that  this  respect  would  be  reflected  in  the  law. 

But  at  the  moment,  I'm  compelled  to  explain  things  as  follows.  I  make 
stories  for  a  living.  If  I  made  a  chair,  or  a  shoulder  bag,  or  a  pot,  it  would 
belong  to  me  for  as  long  as  I  lived,  or  until  I  chose  to  sell  it.  It  would  be  mine 
to  give  to  them,  and  then  it  would  become  theirs  to  give  to  their  children,  and 
so  on. 

Instead,  I  make  stories,  and  they  can  only  belong  to  my  family  until  fifty 
years  after  my  death.  When  my  older  son—who  is  very  smart  and  curious— 
asks  me  why  my  stories  can  be  taken  away  after  fifty  years,  I  say  "It's  the  law." 

When  he  asks  why  can  laws  take  things  away  from  people,  I  try  to 
explain  what  laws  are,  how  they  come  about,  and  why  we're  lucky  to  live  under 


140 


a  system  that  provides  so  many  ways  to  alter  and  improve  them— ways  such  as 
the  hearing  we  are  involved  in  today. 

But  his  eyes  glaze  over  at  these  explanations.  He  is  too  young  to 
understand,  and  the  logic  too  complicated,  and  finally  irrelevant  to  the 
essential  issue,  which  is  property,  be  it  intellectual  or  physical—as  1  said 
earlier,  H.R.  989  is  about  something  at  the  very  heart  of  our  system... 

Property.  Imagine  for  a  moment  how  it  would  feel  if  your  grandmother 
had  left  you  an  exquisite  quilt  of  her  own  miaking,  and  after  a  certain  time 
government  officials  appeared  at  your  door  and  said.  This  qviilt  has  been  in 
your  family  long  enough,  now  it  belongs  to  the  world!?" 

Yet  that's  exactly  what  happens  to  the  things  I  make  during  my  life.  H.R. 
989  is  about  one  thing— property.  It's  about  how  soon  after  people  like  me  have 
made  what  we  make,  can  the  government,  by  law,  take  it  away  from  us.  At  the 
moment,  they  must  wait  only  fifty  years.  It  is  a  small  thing  to  ask  that  we  be 
allowed  to  keep  it  in  the  family  for  another  twenty.  It  is  a  modest  request.  I 
urge  you  to  grant  it. 

Thank  you  for  this  opportunity... and  I  hope  yovir  efforts  will  result  in  a 
change  of  law  that  I  can  hold  up  to  my  sons  as  an  example  of  why  our  system 
and  the  extraordinary  vigor  of  the  arts  it  generates,  are  the  envy  of  the  world. 


141 

Mr.  MooRHEAD.  Ms.  Saffer. 

STATEMENT  OF  JXJDITH  M.  SAFFER,  ASSISTANT  GENERAL 
COUNSEL,  BROADCAST  MUSIC,  INC. 

Ms.  Saffer.  Good  morning  Chairman  Moorhead  and  other  Mem- 
bers of  the  subcommittee.  My  name  is  Judith  Saffer.  I  am  the  as- 
sistant general  counsel  of  Broadcast  Music,  Inc.,  referred  to  as 
BMI,  and  also  the  president-elect  of  the  Copyright  Society  of  the 
U.S.A. 

I  am  here  this  morning  to  speak  on  behalf  of  the  composers, 
songwriters,  and  publishers  of  BMI  who  are  members  of  the  copy- 
right coalition.  I  wish  to  express  their  support  for  copyright  term 
extension.  I  am  also  authorized  to  advise  the  committee  that  an- 
other group  with  which  I  am  associated,  the  American  Intellectual 
Property  Lawyers  Association,  9,000-plus  lawyers  in  the  intellec- 
tual property  field,  have  also  passed  a  resolution  in  support  of 
copyright  term  extension. 

I  am  undoubtedly  the  shortest  witness  who  has  testified  this 
morning;  so  I,  therefore,  think  it  behooves  me  to  have  the  briefest 
comments.  In  view  of  the  fact  that  we  are  short  of  time,  I  don't 
want  to  repeat  the  statements  that  have  been  made  by  other  wit- 
nesses in  support  of  the  copyright  term  extension.  I  don't  believe 
that  it  would  benefit  anybody  to  hear  me  try  to  articulate  the  rea- 
sons why  the  bill  should  be  enacted  when  others  have  spoken  so 
well  before  me. 

It  is,  in  fact,  because  I  sat  here  listening  to  those  other  speakers 
that  I  am  reminded  of  exactly  why  we  are  here  arguing  for  copy- 
right term  extension.  I  listened  to  Mrs.  Bergman  speak  so 
articulately,  and  I  was  again  reminded  when  I  listened  to  Mr. 
Weller,  just  a  moment  ago,  that  we  have  right  here,  right  now,  per- 
fect examples  of  why  copyright  term  extension  should  be  enacted. 

It  is  not  simply  the  points  that  these  individuals  made,  but  it  is 
the  way  that  they  expressed  them.  People  such  as  myself,  lawyers, 
can  make  the  points,  perhaps  with  all  the  right  words,  but  not  with 
the  eloquent  words  that  are  really  persuasive.  It  is  these  individ- 
uals, the  creators,  who  should  be  entitled  to  the  protection  that  this 
bill  seeks  to  grant  for  them.  And  it  seems  particularly  appropriate 
that  they  should  get  the  same  kind  of  protection  that  the  writers 
and  creators  of  works  in  Europe  receive.  I  can  see  no  reason  why 
they  should  be  second-class  citizens. 

One  of  the  things  that  came  up  during  the  course  of  the  question- 
ing of  the  first  panel  was  why  the  rights  of  people  like  Mrs. 
Bergman  and  Mr.  Weller  should  be  granted  additional  protection 
versus  the  claims  of  entrepreneurs  who  wish  to  benefit  from  their 
creativity.  And  I  guess  the  response  that  I  have  to  that  is  that,  in 
balance,  if  somebody  is  going  to  reap  the  rewards  of  their  creative 
product,  shouldn't  it  be  them  and  their  families?  Shouldn't  it  be 
them  and  their  children  and,  yes,  even  their  grandchildren  if  they 
are  fortunate  to  have  them? 

There  is  no  indication  to  me  as  a  consumer — and  I  am  sure  to 
most  of  you  as  consumers — that  the  American  public  really  benefits 
more  from  the  exploitation  of  a  work  once  it  goes  into  the  public 
domain.  When  I  bought  my  ticket  to  see  "Phantom  of  the  Opera" 
I  didn't  pay  any  less  money  for  that  than  I  paid  for  a  ticket  for 


142 

"Miss  Saigon"  just  because  one  was  based  on  a  story  that  was  in 
the  public  domain. 

In  fact,  I  think  pragmatism  tells  us  that  the  converse  is  true.  The 
entertainment  industry,  which  is  the  industry  from  which  I  come 
and  can  therefore  speak  on  behalf  of,  is  much  more  likely  to  exploit 
a  work  that  is  protected  by  copyright,  given  the  extremely  high 
costs  of  production,  distribution,  advertising,  et  cetera. 

One  of  the  points  that  was  made  by  Congressman  Conyers  in  his 
introduction  really  struck  home  to  me  this  morning.  He  talked 
about  being  in  China  and  the  role  that  the  United  States  has 
played  in  trying  to  get  other  countries  to  protect  intellectual  prop- 
erty. How  can  we  go  to  other  countries  and  ask  them  to  grant 
strong  copyright  protection  if  we  are  not  going  to  do  it  right  here 
at  home? 

And  having  promised  to  be  brief,  I  am  going  to  conclude  with  just 
one  statement.  I  think  it  behooves  us  to  remember  that  creators 
and  copyright  owners  will  not  be  the  only  beneficiaries  of  copyright 
term  extensions.  All  Americans  will  be  winners  in  jobs,  in  trade, 
in  the  balance  of  payments  flowing  into  the  United  States  from  in- 
tellectual property. 

Thank  you. 

Mr.  MOORHEAD.  Thank  you  very  much. 

[The  prepared  statement  of  Ms.  Saffer  follows:] 

Prepared  Statement  of  Judith  M.  Saffer,  Assistant  General  Counsel, 
Broadcast  Music,  Inc. 

Legislation  has  been  introduced  in  both  the  House  and  the  Senate  whose  purpose 
is  to  extend  the  term  of  copyright  in  the  United  States  by  providing  for  an  addi- 
tional twenty-year  term  of  protection  for  copyrighted  works.  The  primary  provision 
would  extend  the  term  of  copyright  to  life  of  the  author  plus  70  years.  The  proposed 
legislation  is  based  on  the  belief  that  if  works  copjnighted  in  the  United  States  are 
to  be  properly  protected  internationally,  our  term  of  copyright  must  coincide  with 
the  term  of  copyright  being  granted  in  the  European  Community  ("EC")  and  many 
other  countries. 

It  isn't  necessary  to  outline  in  detail  the  many  reasons  why  the  current  term  of 
copyright  is  inadequate.  I  respectfully  refer  the  Committee  to  the  excellent  com- 
ments submitted  by  the  Coalition  of  Creators  and  Copjrright  Owners  to  the  Copy- 
right Office  in  1993,  and  to  the  statements  presented  by  the  witnesses  speaking  for 
the  Cop)rright  Coalition  at  today's  hearing. 

On  behalf  of  the  composers,  songwriters  and  music  publishers  represented  by 
BMI,  I  would  like  to  stress  that  extending  the  term  of  copyright  will  help  further 
the  general  purpose  of  the  copyright  law — to  encourage  creativity  and  protect  the 
rights  of  authors.  In  the  general  revision  of  the  Copyright  Act  of  1976,  there  was 
a  recognition  that  copyrighted  works  should  receive  protection  for  the  life  of  the  au- 
thor plus  an  additional  50  years.  At  that  time.  Congress  recognized  that  the  prevail- 
ing international  standard  of  protection  should  be  adopted  by  the  United  States,  be- 
cause it  was  believed  that  this  extended  protection  would  help  foster  creativity, 
which  ultimately  enures  to  the  benefit  of  everyone,  not  just  the  author. 

In  addition,  there  is  no  doubt  that  there  are  significant  economic  benefits  to  be 
obtained  by  extending  the  term  of  copjTight.  We  are  all  aware  that  demand  for 
United  States'  copyrighted  materials  transcends  political  boundaries  and  that  all 
kinds  of  American  intellectual  property  such  as  music  are  exceedingly  popular 
throughout  the  world.  Foreign  pa3Tnents  for  works  of  American  authorship  far  ex- 
ceed American  payments  for  works  of  foreign  authors.  Many  estimate  that  United 
States'  copyrighted  related  industries  account  for  more  than  5%  of  the  gross  na- 
tional product  and  return  a  trade  surplus  of  billions  of  dollars.  However,  a  signifi- 
cant amount  of  this  revenue  could  be  put  in  jeopardy  because  of  the  principal  re- 
ferred to  as  "the  rule  of  the  shorter  term",  which  provides  that  if  the  duration  of 
protection  in  a  foreign  state  is  shorter  than  a  member  state,  that  member  state  may 
limit  the  protection  it  gives  to  works  of  the  foreign  state's  nationals,  to  the  latter's 
shorter  copyright  term.  Accordingly,  countries  could  protect  works  of  United  States' 


143 

citizens  only  for  the  United  States'  shorter  term  of  life  plus  50  years,  while  protect- 
ing their  own  works  for  life  plus  70  years.  This  might  result  in  depriving  United 
States'  authors  of  20  years  of  protection  in  the  international  market,  eliminating  an 
important  source  of  revenue. 

Finally,  the  most  frequently  used  argiunent  against  the  United  States  in  trade  ne- 
gotiations is  that  we  are  not  in  a  position  to  chastise  other  countries  for  low  levels 
of  copyright  protection  when  our  own  law  does  not  provide  the  high  level  of  protec- 
tion in  copyright  laws  of  many  western  countries,  particularly  those  in  the  EC.  In 
1976,  various  arguments  were  put  forth  for  extending  the  term  of  copjright,  includ- 
ing the  need  to  bring  U.S.  law  in  line  with  the  laws  of  similar  countries.  It  was  also 
though  that  extending  the  term  of  copyright  would  allow  the  United  States  to  be 
a  leader  in  international  copyright,  would  discourage  retaliatory  legislation,  and 
would  facilitate  international  trade.  Twenty  years  later,  these  points  are  even  more 
valid. 

Mr.  MOORHEAD.  Because  we  have  certainly  limited  time,  I  am 
going  to  ask  our  members  to  be  very  brief  in  their  questioning  and 
certainly  no  more  than  5  minutes,  and  that  will  be  enforced. 

One  thing  that  I  wanted  to  ask,  we  have  a  voluntary  film  label- 
ing program  that  is  working  to  some  extent.  The  film  label  in  the 
bill  doesn't  seem  to  be  satisfactory  to  many  of  the  others  because 
it  is  too  long.  If  we  would  bring  representatives  of  the  motion  pic- 
ture association  and  the  various  groups  that  are  represented  here 
that  are  concerned  with  it  together  in  a  hearing  room  in  Washing- 
ton and  let  you  start  the  negotiations  and  see  that  it  is  carried  out, 
is  it  at  all  possible  you  could  come  to  terms? 

You  are  both  making  money  from  the  same  thing,  the  sale  of  the 
same  films,  everything  else.  Is  it  possible  to  come  to  any  kind  of 
an  agreement  on  this  without  having  legislation  passed  that  en- 
forces it?  We  can  put  it  into  legislation  if  you  can  come  to  an  agree- 
ment. But  is  it  possible  for  you  to  come  to  agreement?  Any  com- 
ments on  that? 

Ms.  COOLIDGE.  We  tried.  We  did.  And  we  couldn't  get  an5rwhere. 

Mr.  MoORHEAD.  Over  how  long  and  under  what  circumstances? 

Ms.  COOLIDGE.  There  were  several  meetings.  I  was  in  contact 
with  our  representatives,  but  I  was  not  involved  in  the  meetings 
themselves.  But  I  know  that  they  were  very  frustrating.  And,  also, 
they  did  not  represent  everyone  involved.  In  other  words,  the  art- 
ists were  represented,  but  all  the  producers  and  distributors  were 
not  100  percent  represented. 

Mr.  MoORHEAD.  Would  you  give  us  a  list  of  those  people  who  you 
think  should  be  involved? 

Ms.  COOLIDGE.  Boy,  would  that  be  a  big  list.  That  is  sort  of  the 
point  I  tried  to  make.  One  of  the  points  that  I  tried  to  make  is  that 
this  goes  on  and  on  and  on.  It  is  a  giant  pyramid  of  people  that 
it  affects. 

And,  second,  the  producers  claimed  that  they  could  deliver  cer- 
tain people  and  they  didn't. 

And,  third,  we  do  not  represent  the  nonunion  artists  who  are 
working  in  this  country.  There  are  a  large  number  of  film  artists 
who  do  not,  for  whatever  reason,  either  the  size  or  scale  of  their 
work,  are  not  members  of  the  unions;  and  we  cannot  represent 
them. 

So  it  is  a  very  large  issue,  to  say  nothing  of  the  fact  that  in  the 
end  the  entire  concept,  as  you  can  see  by  our  testimony  here  today 
of  what  the  label  should  be,  is  kind  of  night  and  day. 


144 

Mr.  Eves.  Mr.  Chairman,  the  view  the  coaHtion  takes  and  the 
view  our  organization  takes,  is  that  there  is  a  vast  difference  be- 
tween a  Government-mandated  label  and  a  voluntary  label.  I  think 
it  would  be  difficult  to  point  to  very  many  programs  that  exist 
today  that  have  achieved  a  90-percent  compliance  rate,  as  has  this 
labeling  program  in  barely  20  months  that  it  has  been  in  existence. 

Directly  to  your  question,  I  think  that  there  clearly  has  been  a 
responsiveness  on  the  part  of  the  motion  picture  industry  to  the 
concerns  that  have  been  raised  here,  and  this  is  why  a  labeling 
program  was  developed. 

Now,  people  will  quarrel  over  the  precise  language,  but  certainly 
we  are  willing,  and  I  know  the  MPAA  is  willing,  to  sit  down  and 
continue  discussions  to  see  if  we  can  come  to  some  agreement  on 
that;  and  we  are  very  willing  to  do  it. 

We  certainly  do  not  want  to  see  a  disparaging  label  that  is  harm- 
ful for  our  business  and  would  seem  to  be  designed  to  tell  people 
that  the  product  that  they  are  buying  is  an  inferior  kind  of  product, 
and  we  have  concerns  about  that. 

One  of  the  points  that  was  made  in  the  testimony  a  few  minutes 
ago  was  that  the  labeling  program  that  we  have  in  existence  right 
now  has  not  created  any  economic  hardship  on  the  industry.  I 
agree  completely  with  that  point;  but  that  is  because  it  is  a  clear, 
unambiguous,  informative  label  without  taking  an  arbitrary  or  a 
disparaging  kind  of  position  with  regard  to  the  film. 

As  to  your  question,  we  are  certainly  willing  to  do  that. 

Mr.  MOORHEAD.  That  voluntary  label,  if  it  were  mandatory,  is 
that  something  that  would  be  satisfactory  to  you? 

Ms.  COOLIDGE.  No.  Because  although  he  may  say  it  is  unambig- 
uous, we  disagree.  I  don't  think  it  is  clear.  It  is  not  a  clear  label, 
and  it  is  not  unambiguous.  For  example,  what  does  edited  for  con- 
tent imply?  If  what  it  implies  is  true,  meaning  that  it  has  sex  and 
violence  removed,  that  is  actually  not  even  involved  in  this  bill. 
That  editing  is  something  that  we  do  as  part  of  our  contract  when 
we  deliver  a  film  made  for  motion  pictures  to  a  television  screen. 
So  that  isn't  even  a  part  of  it. 

Second,  formatted  for  your  television  screen.  That  sounds  like  the 
companies  are  doing  the  consumer  a  favor  rather  than  removing  50 
percent  of  the  image  from  the  picture.  So  we  do  have  a  very  dif- 
ferent opinion  about  how  does  the  cinematographer  or  director  feel 
about  having  50  percent  of  the  image  removed  from  the  picture. 

Mr.  MoORHEAD.  Would  you  be  willing  to  sit  down  one  more  time 
and  see  if  some  linguists  among  the  group  can  come  up  with  some- 
thing that  could  be  agreed  to  by  everybody? 

Ms.  COOLIDGE.  Well,  I  have  to  tell  you,  Mr.  Chairman,  that  we 
have  been — this  request  has  been  made  to  us  several  times;  and  we 
did  sit  down  one  more  time  and  one  more  time  and  one  more  time 
again.  So  I  don't  know  how  to  further  answer  you. 

Well — I  mean,  the  problem  is  we  know  what  the  problems  are. 
We  know  that  the  producers,  when  we  sit  down  and  discuss  to- 
gether, will  not  consider  the  idea  of  the  creative  authors  having  an 
objection.  We  know  that.  There  doesn't  seem  to  be  any  way  around 
it.  And  the  authors,  on  the  other  hand,  are  extremely  emphatic  in 
their  concern  for  having  the  opportunity  to  make  this  objection. 


145 

I  would  like  to  point  out,  though,  something  that  I  think  is  obvi- 
ous, and  I  hate  to  say  the  obvious.  This  example  of  a  worst  possible 
scenario  label  is  almost  laughable.  Who  would  put  a  product  out 
with  this  gigantic  label  on  it?  Most  films  would  hardly  have  any 
label  on  them  at  all.  Most  films,  particularly  that  go  into  the  video 
market  on  a  videocassette,  are  not  altered.  The  most  common  alter- 
ation that  is  done  would  be  panning  and  scanning.  That  would  be 
the  only  common  label,  and  you  don't  know  if  it  would  have  an  ob- 
jection. It  might  not.  It  depends  on  the  author. 

But  a  situation  in  which  a  film  has  had,  let's  say,  20  minutes 
taken  out  plus  they  have  lexiconned  it,  which  is  almost  ridiculous, 
why  would  you  speed  up  the  film  if  you  are  cutting  out  a  huge 
amount  of  it?  Say  you  lexicon  it  to  speed  it  up  plus  you  cut  out  20 
minutes  plus  you  colorize  it.  The  idea  of  doing  that  many  alter- 
ations on  it — I  have  to  say  that  I  would  argue  with  you  that  maybe 
such  a  radically  altered  version  is  an  inferior  product  and  maybe 
it  ought  to  have  a  label  so  that  the  purchaser  of  this  film  would 
know  that  their  favorite  scene  in  that  movie  may  not  be  there. 

But,  anyway,  most  films  out  there  today  with  this  voluntary  la- 
beling situation  are  not  labeled.  First  of  all,  syndicated  films  do  not 
have  labels.  Releases  prior  to  1993  do  not  have  labels.  There  are 
tens  of  thousands  of  movies  out  there  that  are  not  labeled  under 
this  voluntary  labeling  system,  which  we  consider  to  be  inadequate 
because  it  doesn't  reach  all  the  distributors  and  it  is  an  inadequate 
label. 

Mr.  MooRHEAD.  Thank  you. 

Mr.  Conyers. 

Mr.  Conyers.  Thank  you,  Mr.  Chairman. 

I  don't  know  who  was  supposed  to  enforce  the  time  against  the 
chairman.  It  is  not  important,  because  we  are  all  here  because  of 
the  compelling,  important  nature  of  this  subject. 

Let  me  just  throw  out  a  few  questions.  Throw  back  a  few  re- 
sponses. Write  to  me.  This  matter  will  not  be  ultimately  disposed 
of  today.  And  I  loved  Mr.  Weller's  testimony.  I  think  most  people 
appreciated  it.  But  why  don't  you  tell  your  son  about  the  Constitu- 
tion? It  isn't  just  laws  that  we  flip  around.  The  Constitution,  article 
one,  says  that  we  shall  limit  it. 

And  that  is  where  we  get  to  Brother  Bono.  If  you  are  saying  you 
want  a  constitutional  amendment,  great.  Somebody — I  am  sure 
there  are  people  around  that  will  want  to  do  that. 

What  I  would  like  to  do  is  to  find  out — we  know  what  kind  of 
labels  we  don't  want.  I  would  like  to  see  the  kind  of  label  we  do 
want  in  this  subject  matter.  And  I  don't  think  it  is  accurate  to  say 
that  this  is  a  solution  in  search  of  a  problem. 

You  have  been  negotiating,  Mr.  Eves.  You  couldn't  have  been  ne- 
gotiating about  a  nonproblem.  This  is  not  only  a  problem,  it  is  a 
big  problem.  And  I  approach  this  with  great  interest  and  concern. 
I  am  not  sure  why  we  do  need  two  labels  instead  of  one. 

I  think  it  is  important  to  consider  the  fact  that  this  moral  rights 
discussion  deriving  from  French  law  is  very  important.  I  think — I 
don't  think  we  need  to  adopt  it  in  its  whole  entirety,  but  I  don't 
think  that  it  is  subject  to  being  dismissed  out  of  hand.  I  mean,  they 
have  parliamentarians  and  people  who  know  legal  theory  just  as 
we  do,  and  I  am  interested  in  pursuing  it  some  more. 


146 

Another  question  that  occurs  to  me  is,  doesn't  the  Lanham  Act 
protect  creators  against  excessive  edits  without  proper  labeling? 
And  it  seems  to  me  that  many  viewers,  unfortunately,  ignore  all  la- 
bels. I  am  not  real  optimistic  about  labels  doing  much;  but  in  the 
appropriateness  of  this  subject  matter  it  seems  to  me  that  at  least 
a  prima  facie  case  has  been  made  on  the  part  of  the  writers  that 
there  ought  to  be  a  little  bit  more  to  this  than  volunteerism. 

And  I  close  with  my  observation  about  letting  people  voluntarily 
correct  things  never  works  unless  there  is  a  huge  pressure  behind 
saying,  "If  you  don't  do  it  right,  brother,  we  are  going  to  do  it  for 
you."  My  experience  has  led  me  not  to  leave  automobile  corpora- 
tions to  voluntarily  do  anything  or  anybody  else. 

And  so,  starting  with  you,  Ms.  Coolidge,  would  you  make  any  re- 
sponses you  might  make  to  these  number  of  questions  and  observa- 
tions that  I  have?  And  then  I  would  like  to  invite  Mr.  Weller  and 
Ms.  Saffer  to  do  the  same. 

Ms.  Coolidge.  Well,  I  don't  know  if  this  is  a  direct  response  or 
an  indirect  response,  but  I  do  agree  with  you.  I  think  that  our  con- 
tinued efforts  to  discuss  this  over  the  past  few  years — and  the  more 
deeply  we  look  into  this  problem — I  think  that  the  simplest  pos- 
sible solution  and  the  most  truthful  solution  for  the  public  is  to 
have  specific  factual  labels,  including  an  objection,  on  these  pic- 
tures. 

So  the  question  I  ask  is,  "how  burdensome  is  the  truth?"  The 
more  I  hear  my  colleague  over  here  argue  that  it  is  burdensome  to 
put  these  very  factual  labels  on  the  film,  the  more  I  wonder  does 
that  mean  marketing  implies  lying  about  the  material  you  are  sell- 
ing? 

And  this  is  something  that  there  is  some  history  about  in  mar- 
keting. The  truth  is,  if  they  have  a  director's  cut  that  they  consider 
to  be  a  new  product,  that  label  is  put  in  very  big  letters  across  the 
top  of  the  videocassette,  and  it  is  considered  a  positive  element  in 
selling  the  picture. 

Mr.  Berman.  What  do  you  mean? 

Ms.  Coolidge.  You  can  re-release  a  movie,  you  know,  with  the 
director's  cut.  There  are  criterion  and  other  companies  who  release 
laser  discs  and  even  in  videocassettes  where  they  are  going  back 
to  director's  cut  and  using  that  as  a  new  product  and  marketing 
tool  to  promote  it. 

I  think  that  what  the  ultimate  result  of  labeling,  truthful  label- 
ing and  objections,  will  be  is  that  the  public  and  the  artists  will 
more  value  the  original  authentic  version  of  whatever  film  it  is  that 
they  are  buying. 

Mr.  CONYERS.  Thank  you. 

Mr.  Weller,  any  comments? 

Mr.  Weller.  My  response  is  essentially  emotional.  What  we 
make  is  who  we  are,  and  it  is  important  to  us  that  it  be  seen  the 
way  we  intend  it  to  be  seen.  When  an  outside  person  intervenes  in 
that  process,  it  is  insulting  and  it  is  upsetting.  Obviously,  it  is  a 
very  emotional  issue. 

And  when  Mr.  Moorhead  said  that  we  have  to  try  to  get  together 
and  work  this  out,  I  think  that  attempts  are  so  heated  when  this 
process  begins  that,  finally,  alas,  it  may  be  necessary  for  legislation 
to  encourage  certain  compliance  here.  I  think  the  issues  are  just 


147 

too — ^the  interests  are  just  too  disparate  in  both  ends.  That  is  my 
emotional  sense  of  what  is  going  on. 

Ms.  Saffer.  I  am  here  as  a  lawyer,  and  I  assume  that  means 
that  I  am  not  supposed  to  be  emotional.  I  am  just  supposed  to  be 
logical.  But  I  am  always  tempered  by  the  fact  that  I  am  a  human 
being,  and  so  my  comments,  really,  express  both  my  logical  and 
emotional  reaction. 

You  addressed  a  point  Mr.  Weller  made  about  how  he  should  ex- 
plain to  his  son  about  the  fact  that  the  duration  of  copyright  is  lim- 
ited. And  perhaps 

Mr.  Weller.  That  is  next  year,  by  the  way.  He  is  only  8. 

Mr.  CONYERS.  He  is  not  ready  for  the  Constitution.  OK. 

Ms.  Saffer.  I  am  supposedly 

Mr.  CoNfYERS.  I  hate  to  tell  what  you  my  son  is  asking  me  about, 
and  he  is  only  4.  Excuse  me. 

Ms.  Saffer.  I  have  read  the  Constitution  several  times  over  my 
lifetime,  and  I  think  that  the  point  here  is  that  nobody  is  trying 
to  change  the  Constitution.  The  Constitution  provides  for  cop3n:ight 
protection  for  a  limited  time,  but  it  doesn't  say  what  that  limited 
time  should  be. 

What  we  are  attempting  to  do  is  to  change  the  law  so  that  the 
limited  time  will  be  one  that  makes  sense  in  our  lifetime,  and  in 
these  circumstances,  in  order  to  provide  the  best  benefits  for  the 
creators  and  for  America  as  a  whole.  And  as  we  see  it  now  that 
is  simply  to  give  us  parity  with  European  counterparts,  extend  an- 
other 20  years,  not  change  the  Constitution. 

Mr.  CONYERS.  Thank  you. 

Last  but  not  least,  Mr.  Eves. 

Mr.  Eves.  Congressman,  we  are  not  objecting  to  a  label  for  a  la- 
bel's sake.  I  think  the  very  willingness  of  the  MPAA  to  try  to  start 
a  voluntary  program  is  indicative  of  our  willingness  to  do  that. 

We  are  admittedly  very,  very  protective  about  this  industry.  We 
are  certainly  aware  of  a  difference  in  the  way  the  Americans  and 
the  Europeans  have  approached  the  moral  rights  issue.  But  in 
thinking  about  those  differences,  we  are  also  terribly  aware  of  how 
successftjl  we  have  been  in  this  country  with  the  movie  business. 
And  the  success  that  we  have  met  with  in  this  country  causes  us 
to  ask  ourselves  the  question:  Why  have  we  been  so  much  more 
successful  than  those  in  other  countries? 

Mr.  Conyers.  The  implication  is  that  you  will  be  less  successful 
with  this  labeling?  Is  that  your  point? 

Mr.  Eves.  That  is  very  much  a  concern,  sir,  yes. 

Mr.  Conyers.  OK. 

Mr.  Eves.  We  also  think  that  many  of  the  kinds  of  issues  that 
we  are  talking  about  today  ought  to  be  issues  that  are  discussed 
at  the  bargaining  table.  When  people  sit  down  and  they  talk  about 
wages  and  terms  of  work  and  conditions  and  benefits  and  residuals 
and  all  of  the  factors  that  go  into  the  agreement,  this  is  the  place 
and  venue  for  artists'  rights  discussed  to  occur.  If  there  is  an  argu- 
ment or  disagreement  later  on,  it  should  be  resolved  by  the  parties 
themselves  and  we  should  not  ask  Congress  once  again  to  step  into 
it. 


148 

Certainly,  from  our  point  of  view,  we  are  very  willing  to  sit  down 
and  continue  the  discussion;  and  I  would  certainly  urge  both  sides 
to  do  so. 

Mr.  CONYERS.  Thank  you  so  much.  You  are  talking  to  the  com- 
mittee who  has  jurisdiction  over  the  baseball  strike.  And  some- 
times have  you  got  to  go  back  in,  unfortunately. 

Thank  you,  Mr.  Chairman.  You  are  very  generous  with  your 
time. 

Mr.  MOORHEAD.  Mr.  Bono. 

Mr.  Bono.  This  is  tough  because  it  is  a  practical  issue,  and  it  is 
an  emotional  issue.  I  certainly  understand  the  emotional  portion  of 
it.  But  you  are  getting  down  to  philosophy  here,  and  I  think  what 
you  have  to  identify  is  what  your  philosophy  is. 

Basically,  what  some  of  you  are  asking  for  is  a  mandate  from 
Government.  And  I  would  think  twice  about  asking  the  Govern- 
ment to  mandate  your  industry  in  any  form.  Could  it  stop  here  or 
could  it  keep  going?  Can  it  go  to  a  script?  You  are  a  writer.  Where 
will  that  end? 

I  think  the  second  question  I  would  like  to  ask  Ms.  Coolidge. 
What  language  would  you  like  to  have  on  a  general  basis?  I  mean, 
"This  picture  is  ruined"?  I  don't  know  where  you  want  to  take  it 
to. 

Ms,  Coolidge.  Well,  outside  of  reading  the  label  that  was  up  on 
the  screen,  the  language  has  been  carefully  thought  through  and 
it  is  listed  in  the  bill  and  it  is  kind  of  a  sort  of  a  domino  set.  You 
can  have  just  one  tiny  label;  and  the  more  things  that  are  done  to 
a  movie,  the  stronger  it  gets. 

Mr.  Bono.  Is  the  idea  to  tell  the  public  that  the  product  is  less 
than  what  it  was? 

Ms.  Coolidge.  The  idea  is  to  tell  the  public  that  the  product  is 
changed. 

Mr.  Bono.  Changed? 

Ms.  Coolidge.  Changed  from  the  original  version.  I  really  appre- 
ciate Mr.  Conyer's  question.  Because  the  point  is — the  implication 
we  keep  hearing  is  we  don't  want  this  label  because  the  label  will 
damage  the  sale  of  the  product. 

First  of  all — and  I  think  the  part  of  the  label  that  we  want,  that 
our  opponents  find  more  damaging,  is  the  objection.  But  the  objec- 
tion is  very  important.  If  they  feel  that  the  objection  is  so  damag- 
ing to  the  product,  then  obviously  the  audience  should  know  that 
the  people  who  made  this  piece  of  art  feel  that  something  is  wrong. 
The  logic  is  very  simple. 

Mr.  Bono.  That  it  has  been  changed  or  altered? 

Ms.  Coolidge.  I  am  talking  now  specifically  about  the  objection. 

The  label  starts  with  a  change;  and  that  change,  by  the  way,  can 
be  positive.  Let's  say  we  are  talking  about  something  that  could  be 
sold  as  a  director's  cut.  Let's  say  that  the  original  version  of  a  film 
that  everybody  decided  on  was  1  hour  and  54  minutes  long,  and  so 
it  was  a  very  popular  film.  And  this  has  happened  recently  with 
"Blade  Runner"  and  "Lawrence  of  Arabia."  Then  they  go  back  to 
the  original  director's  cut  which  may  be  20  minutes  longer.  Let's 
ask  the  director  to  reassemble  his  first  cut,  put  that  together  and 
market  that  as  the  original  director's  cut. 


149 

That  film  would  include  a  label  that  says  this  film  is  not  the 
original  version  that  was  released.  It  is  20  minutes  longer.  And 
there  will  be  no  objection  on  it.  They  promote  it  as  the  director's 
cut,  and  the  artists  approve  of  it,  and  there  is  more  material. 

Mr.  Bono.  The  question  got  a  little  complicated.  Are  you  saying 
that  there  should  be  two  versions  available  at  a  store,  the  cut  ver- 
sion and  the  director's  cut  version? 

By  the  way,  the  director's  cut  is  when  a  director  makes  a  picture. 
It  is  his  work  of  art  or  her  work  of  art,  and  they  cut  the  picture 
in  the  cutting  room,  and  they  finalize  the  picture.  At  that  point, 
they  turn  it  over  to  the  studio.  In  some  cases,  the  director  pre- 
serves the  right  to  keep  that  final  cut.  In  other  cases,  whatever  the 
contract  is,  the  studio  can  then  recut  it  if  they  want. 

You  know,  again,  you  were  compensated  for  directing  the  picture. 
So  you  are  going  down  to  the  basics  of  compensation,  is  what  I  am 
trying  to  tell  you  that  you  are  starting  to  dig  up.  You  are  paid  well. 

Ms.  COOLIDGE.  With  due  respect,  you  know,  Michelangelo  was 
compensated  for  painting  the  ceiling  of  the  Sistine  Chapel;  but,  on 
the  other  hand,  I  think  he  would  be  upset  if  it  was  changed.  As 
you  said,  it  is  a  difficult  issue. 

Mr.  Berman.  They  just  restored  it. 

Ms.  COOLIDGE.  I  know,  and  I  don't  know  how  he  would  feel  about 
it.  We  can't  ask  him. 

At  any  rate,  the  point  is  what  we  are  talking  about — we  are  not 
asking,  demanding  that  there  be  two  versions  in  the  video  store. 
Most  of  these  suggestions  become  too  complicated.  All  we  are  ask- 
ing for  is  that  when  a  film  is  changed  from  its  originally  released 
version  that  it  bear  a  truthful  and  specific  label  that  tells  the  buyer 
exactly  what  was  done. 

Mr.  Bono.  That  is  why  I  ask  what  the  language  was. 

Ms.  COOLIDGE.  It  is  in  the  bill. 

Mr.  Bono.  It  is  in  the  bill? 

Ms.  COOLIDGE.  The  language  is  completely  outlined  in  the  bill  in 
a  simple,  step-by-step  manner  as  to  exactly  how  to  label.  It's  very 
simple,  how  many  minutes  have  been  removed.  Then,  if  there  is  an 
objection,  that  is  included;  but  if  there  isn't,  that  is  not  included. 
And  then  it  goes  on  from  there. 

The  point  is,  Mr.  Bono,  that  in  the  end  maybe  the  video  store — 
and  I  don't  understand  why  this  is  burdensome  to  a  video  store 
even  in  the  slightest — might  want  to  include  the  original  version  on 
their  sales  shelf  because  the  original  version  might  have  more 
value. 

Mr.  Bono.  They  are  taking  the  position  we  paid  for  this  product. 
They  paid  you.  They  paid  the  scriptwriter.  They  may — everybody 
was  paid.  So,  from  that  point  of  view,  who  is  the  owner?  I  think 
that  you  have  to  ascertain  at  some  point  who  owns  the  product,  be- 
cause it  takes  a  collaboration  of  people  to  create  the  product,  cor- 
rect? 

Mr.  MOORHEAD.  I  think  your  time  has  expired.  We  have  each 
taken  3  minutes  more  than  was  originally  planned. 

Mr.  Bono.  I  understand  how  you  feel.  It  happened  to  me.  And 
I  produced  a  picture,  and  I  had  to  sell  it  for  350  bucks,  and  they 
cut  the  picture  to  shreds.  But  I  knew  I  had  to  sell  the  picture,  so 
at  that  point  I  sold  it. 


150 

Mr.  CONYERS.  You  need  protection. 

Mr.  Bono.  We  need  legislation. 

Mr.  Berman.  I  am  not  sure  of  the  philosophical  distinction  be- 
tween mandating  the  extension  of  the  copyright  term  and  the  no- 
tion that  it  is  inappropriate  to  mandate 

Mr.  Bono.  May  I  respond  to  that? 

Mr.  Berman.  Only  if  it  is  not  on  my  time. 

Mr.  Bono.  One  is  paid  for  and  one  isn't. 

Mr.  Berman.  In  other  words,  you  are  not  talking  about  the  song 
as  a  work  for  hire  for  a  film.  You  are  talking  about  an  independent 
song. 

Mr.  Bono.  That  is  true. 

Mr.  Berman.  I  think  that  is  a  fair  distinction. 

Mr.  Eves,  I  don't  think  you  should  continue  to  use  the  argument 
that  we — we  in  the  sense  of  whoever  all  is  in  the  coalition — the  stu- 
dios, the  video  dealers,  the  television  stations,  the  networks — have 
out  of  the  goodness  of  our  heart  and  because  it  is  a  right  thing  to 
do  come  up  with  an  appropriate  label  for  these  films. 

The  fact  is,  you  did  it  because  there  was  legislation  in  over  the 
last  5  or  6  years  and  it  was  in  that  context  that  those  labels  ap- 
peared. And  so  already  the  legislation  has  had  some  role.  It  has 
caused  you  to  decide  to  come  to  an  agreement  on  a  label. 

To  me,  this  is  sort  of  a  continuum.  You  start  on  the  far  end  with 
should  any  of  the  creators  be  able  to  veto  this,  the  noncopyright 
holder  creators  be  able  to  veto  this?  Should  they  be  able  to  object 
to  it?  Should  it  be  accurately  described? 

I  can  certainly  see  your  concern  about  disparaging  comments  af- 
fecting the  marketability  of  the  product.  And  I  know  that  were  ne- 
gotiations. They  came  fairly  close.  I  think  the  folks  who  have  la- 
beled— the  studios  and  the  people  who  have  labeled — have  fallen 
short  of  where  they  were  in  the  negotiation  process;  and  the  other 
side  in  this  legislation  is  asking  for  more.  I  guess  both  of  these  are 
to  be  expected  since  no  deal  was  worked  out. 

But  what  is  wrong — if  22  minutes  of  the  film  has  been  cut,  say- 
ing this  film  is  22  minutes  shorter  or  22  minutes  have  been  edited 
from  the  film  originally  released  in  the  motion  pictures?  Which  is, 
by  the  way,  why  you  are  renting  it  because  you  heard  about  it 
when  it  was  released  in  the  motion  pictures.  What  is  wrong  with 
that? 

Mr.  Eves.  Mr.  Berman 

Mr.  Berman.  Is  that  a  disparaging  comment?  I  guess  that  is  my 
question. 

Mr.  Eves.  That  statement  made  in  isolation,  by  itself,  no,  sir,  I 
don't  think  it  is. 

Mr.  Berman.  So  why  haven't  you  gone — ^why  haven't  you 
agreed — that  is  a  heck  of  a  lot  more  communicative  than  "This  film 
has  been  modified." 

Mr.  Eves.  What  we  are  testifying  today,  sir,  is  the  legislation 
that  begins  with  a  warning  label  that  states  this  is  not  the  original 
product  and  then  it  goes  through  the  litany  of  all  the  people  that 
object  and  the  reasons  they  object. 

Mr.  Berman.  I  understand  you  don't  like  the  legislation,  but  in 
part  of  your  argument  you  went  to  the  trouble  of  bringing  a  tele- 
vision set  that  shows  the  labels  that  you  are  proud  of  that  you  have 


151 

done,  quote,  voluntarily,  unquote.  And  I  am  saying  what  is  wrong 
with  including  in  your  voluntary  system,  understanding  your  oppo- 
sition to  the  legislation,  the  amount  of  minutes  that  you  have  cut 
from  a  film? 

Mr.  Eves.  Sir,  I  think  that,  as  we  indicated,  I  know  that  the 
MPAA  is  certainly  willing  to  sit  down  and  to  continue  discussions. 
I  recognize  that  there  are  legitimate  differences  of  opinion  over  the 
precise  language. 

Mr.  Berman.  To  your  way  of  thinking,  that  does  not  affect  the 
marketability  of  your  video  dealer's  inventory,  an  accurate  descrip- 
tion of  the  amount  of  time  that  has  been  cut  from  the  originally 
released  film?  Is  that  a  fair  conclusion? 

Mr.  Eves.  The  average  film  today  costs  $50  million  to  produce. 

Mr.  Herman.  My  question  is,  does  an  accurate  description  of  the 
amount  of  time  that  has  been  cut  from  the  originally  released  film 
negatively  affect  the  marketability  of  your  product  in  the  video 
stores? 

Mr.  Eves.  I  believe  that  one  has  to  take  a  look  at  the  entire  label 
in  its  context. 

Mr.  Berman.  Nothing  else  for  a  second,  hjrpothetically,  except 
where  the  modification  has  been  a  shortening  of  the  film,  a  cutting 
of  the  time  of  the  film,  adding  or  substituting  for  the  modification 
the  words,  "18  minutes  has  been  edited  from  this  film  as  originally 
released."  Would  that  negatively  affect  the  marketability? 

Mr.  Eves.  This  is  going  to  be  more  of  a  television  issue  than  a 
video  store  issue  since  it  is  rare  to  cut  from  a  video  cassette.  There 
may  be  a  marketability  question  as  to  the  ability  to  show  the  film 
on  free  television  in  terms  of  whether  it  could  fill  the  time  slot. 

Mr.  Berman.  I  was  asking  about  video  dealers  at  this  point. 

Mr.  Eves.  No,  as  a  matter  of  fact,  with  the  video  dealers  gen- 
erally there  is  not  a  situation  where  there  is  anjd^hing  cut.  And,  in 
many  cases,  there  are  more  than  one  version  of  the  film  that  is 
available,  including  the  director's  cut.  And  also  some  of  the  studios 
are  making  available  the  film  without  the  pan  and  scan  technique 
used. 

Mr.  Berman.  I  am  gathering  you  are  saying  it  would  not  affect 
marketability  in  the  video  dealer  context. 

Mr.  Eves.  It  is  not  an  issue  primarily  in  the  video  context  unless 
the  language  used  on  the  label  is  disparaging  to  the  product. 

Mr.  Berman.  What  about  a  label  that  said,  this  film  has  been 
colorized? 

Mr.  Eves.  Again,  in  the  video  area,  the  label  relating  to 
colorization  already  appears  in  this  way. 

Mr.  Berman.  Was  "Angels  in  the  Outfield" — was  that  originally 
in  the  color?  I  just  saw  it,  and  I  didn't  see  a  label  that  said  it  was 
colorized. 

Mr.  Eves.  It  was  made  in  a  color  version  just  in  the  last  2  or 
3  years.  It  is  a  remake.  It  is  a  relatively  recent  production. 

Mr.  Berman.  So,  it  is  not  a  colorized  version.  I  missed  the  new 
one.  It  came  and  left  without  me  knowing  about  it. 

Mr.  MOORHEAD.  The  gentleman's  time  has  expired. 

Mr.  Berman.  Thank  you. 

Mr.  Becerra.  Mr.  Chairman. 

Mr.  MoORHEAD.  The  gentleman  from  California,  Mr.  Becerra. 


152 

Mr.  Becerra.  Thank  you. 

I  think  you  can  see  that  a  lot  of  us  are  struggling  with  this  issue, 
because  I  don't  believe  that  legislation  doing  what  either  side 
would  like  would  ever  pass.  I  think  it  is  too  convoluted,  too  eso- 
teric. And  it  would  be  difficult  to  get  218  Members  in  the  House 
and  60  Members  in  the  Senate — that  there  is  some  good  com- 
promise out  of  this.  And  I  think  it  is  unfortunate  because  I  wish 
it  would  be  resolved. 

Let  me  ask  a  question — I  will  try  not  to  take  too  much  of  a  side 
on  this,  but  let  me  ask  a  question  of  the  directors  and  the  screen- 
writers and  ask  why  not  also  include  within  the  list  of  people  who 
can  raise  an  objection — actors  or  other  artists  who  are  involved  in 
the  film? 

Ms.  COOLIDGE.  Well,  the  short  answer  is  twofold.  One  is  that 
there  is  some  precedent  in  Europe  as  to  who  are  considered  to  be 
the  authors  of  a  motion  picture.  And  they  vary  slightly  from  coun- 
try to  country,  but  we  have  followed  the  most  standard  traditional 
approach. 

Second,  through  equally  important — and  I  think  that  the  state- 
ments from  the  Screen  Actors  Guild  that  I  have  submitted,  you 
know,  really  prove  that — is  the  traditional  relationship  of  trust  be- 
tween the  people  who  work  on  a  motion  picture — the  editors,  the 
grips,  the  crew  people,  makeup,  hair,  actors — and  the  director. 
They  sign  on  to  do  a  movie  with  a  director,  and  that  director  is 
making  the  final  decisions  as  to  whether  or  not  that  actor's  per- 
formance is  up  to  snuff  or  not  and  whether  or  not  the  development 
of  the  character  is  correct. 

And  those  actors  have  always  had,  and  continue  to  have,  a  rela- 
tionship of  trust  which  is  a  part  of  taking  that  job. 

So  the  entire  process  of  making  a  film  is  to  develop  it  and  to  fol- 
low it  in  terms  of  production,  realizing  one  vision.  It  is  very,  very 
difficult  to  make  a  movie  with  more  than  one  person  saying  what 
kind  of  a  movie  you  are  making.  And  that  is  why  the  director  tradi- 
tionally has  had  the  final  decisions. 

Mr.  Becerra.  It's  only  natural,  I  would  want  to  be  there  with  the 
screenwriters  and  directors,  but  I  would  like  to  see  the  other  artists 
involved.  Because  whether  you  bargained  away  your  part  as  an 
actor  to  be  a  part  of  that  decisionmaking  process,  I  think  the  same 
comparison  could  be  made  between  the  directors  and  the  producers. 
And  coming  from  a  union  home,  where  I  wish  my  father  had  more 
say  as  to  his  working  conditions  and  the  things  that  he  produced, 
I  wish  there  were  a  better  way  to  try  to  get  others  involved. 

Ms.  Coolidge.  But  here  is  the  twofold  problem  or  issue:  One  is, 
they  haven't  asked  for  it.  That  is  very  simple.  They  have  supported 
this  bill,  and  they  have  supported  the  bill  as  it  stands,  which  is  fur- 
ther proof  that  they  trust  that  if  a  director's  work  is  hurt  the  ac- 
tor's work  is  hurt.  It  is  very  simple. 

We  also  all  know,  and  this  has  been  a  ploy  of  some  of  our  oppo- 
nents, that  if  you  put  more  and  more  and  more  people  into  the  ob- 
jection portion  of  this  bill  it  will  be  impossible — impossible  to  create 
anything  realistic  that  would  work. 

But  there  really  is  precedent  for  this  in  Europe,  and  we  could 
further  educate  you  about  that. 

Mr.  Becerra.  Thank  you  for  that. 


153 

Let  me  ask  Mr.  Eves  a  question.  At  what  point  do  you  reach  that 
threshold  where  you,  in  fact,  have  to  in  some  degree  undermined 
the  character  or  the  artistic  value  of  a  film  by  cutting  20  minutes 
or  by  cutting  out  too  much  of  the  film  because  you  have  to  fit  it 
on  a  TV  screen? 

At  what  point  is  it  true  that  the  work  that  is  being  displayed  is 
no  longer  the  work  that  has  been  promoted  that  is  causing  people 
to  want  to  go  view  it? 

Mr.  Eves.  Congressman,  I  wouldn't  honestly  know  how  to  pos- 
sibly answer  that  question,  because  I  think  in  the  eye  of  the  person 
looking  at  it  you  will  probably  get  a  different  version. 

There  are  certainly  a  lot  of  creative  artists  and  directors  who  ob- 
ject to  the  panning  and  scanning  of  a  film  to  fill  up  the  television 
set.  There  are  other  people,  customers  of  ours,  who  come  into  a 
video  store  when  they  see  an  original  cut  of  a  movie  and  return  the 
tape  telling  them  the  tape  must  be  defective  because  they  had 
these  big  black  bands  on  the  top  and  the  bottom  of  their  picture. 

So  it  is  an  awful  lot  in  the  eye  of  the  beholder,  and  I  would  not 
presume  to  know  exactly  at  what  point  that  happens.  I  guess  that 
is  going  to  be  up  to  each  individual  to  decide. 

Mr.  Becerra.  I  think  you  just  illustrated  the  problem  for  this 
particular  issue.  No  one  really  knows  what  is  sufficient  or  what  is 
a  sufficient  compromise  for  us  to  go  with.  And  if  you  all  can't  sit 
down,  I  don't  think  that  you  can  expect  us,  who  have  less  knowl- 
edge than  you  do  about  the  industry  and  the  product  and  the  artis- 
tic value,  to  come  up  with  something  that  anyone  would  be  satis- 
fied with. 

I  think  it  is  unfortunate  because  I  know  that  you  all  tried  very 
hard  a  couple  of  years  back,  and  I  am  in  a  quandary. 

Mr.  CONYERS.  Will  the  gentleman  yield  briefly? 

Mr.  Becerra.  I  will  just  finish  the  statement.  Of  course,  I  will 
yield  to  the  ranking  member. 

I  wish  you  all  could  find  a  way.  I  think  there  must  be  some  mid- 
dle ground.  I  think  that  at  some  point  the  art  has  been  disparaged 
or  has  been  changed  so  much  so  that  the  artistic  value  or  character 
has  been  altered;  and  the  consumer,  because  of  I  think  a  truth  in 
advertising  or  a  customer's  right  to  know,  should  understand  that. 

But  I  also  believe  that  it  is  difficult  with  the  legislation  in  hand 
to  define  or  give  us  the  understanding  of  what  an  objection — what 
constitutes  a  proper  objection  on  the  part  of  a  director.  At  what 
point  does  it  reach  the  threshold  where  the  director  has  the  right 
to  object  because  the  character  has  been  changed?  And  I  think  it 
becomes  very  difficult,  and  you  are  asking  us  to  do  something  sub- 
jective which  you  all  are  having  a  difficult  time  doing  yourselves. 

I  yield  to  the  ranking  member. 

Mr.  Co^fYERS.  My  admiration  for  my  colleague  from  California 
leads  me  to  know  that  frequently  we  make  the  decisions  that  ex- 
perts who  have  far  more  knowledge  than  us — that  is  why  we  hold 
hearings. 

Mr.  Becerra.  That  is  why  Grovemment  is  so  disparaged. 

Mr.  Berman.  That  is  why  we  wanted  the  job. 

Mr.  CONYERS.  The  witnesses  come  to  us  as  experts  and,  guess 
what,  we  make  the  decisions.  That  doesn't  mean  it  is  right,  but 
that  is  why  the  hearing  is  held. 


154 

Mr.  Becerra.  Nor  does  it  mean  that  the  decision  we  make  is  the 
best  one  for  the  industry,  but  we  will  strap  the  industry  to  live 
with  it.  And  I  suspect  at  some  point  we  will  find  one  sector  of  the 
industry  coming  back  and  saying  you  did  a  darned  awful  job  and 
try  to  fix  it. 

Ultimately,  we  are  going  to  get  guidance,  the  expert  assistance, 
from  the  industry;  and  it  just  helps  us  if  we  had  more  of  a  concrete 
answer  from  the  industry  as  to  where  we  would  go  so  that  we  could 
focus  on  trying  to  define  what  we  can  do,  if  anything  needs  to  be 
done  at  all. 

Mr.  CONYERS.  You  are  up  to  it. 

Mr.  Becerra.  Thank  you,  Mr.  Chairman.  And  I  thank  all  the 
panelists  for  being  here. 

Mr.  MOORHEAD.  I  want  to  thank  all  the  panelists  and  all  the  peo- 
ple who  have  come  and  provided  our  audience  today.  And  I  want 
to  thank  the  four  other  members  of  the  panel  that  have  come  over 
here  for  this  hearing.  This  has  been  a  good  hearing.  I  am  sorry  we 
kept  you  so  long.  But  I  think  it  has  been  important  that  we  have 
gone  over  the  subject  and  given  it  the  time  it  deserves. 

Thank  you. 

The  subcommittee  is  adjourned. 

[Whereupon,  at  12:46  p.m.,  the  subcommittee  adjourned.] 


COPYRIGHT  TERM  EXTENSION  ACT  OF  1995 


THURSDAY,  JULY  13,  1995 

House  of  Representatives, 
Subcommittee  on  Courts  and 

Intellectual  Property, 
Committee  on  the  Judiciary, 

Washington,  DC. 

The  subcommittee  met,  pursuant  to  notice,  in  room  2237,  Ray- 
burn  House  Office  Building,  Hon.  Carlos  J.  Moorhead  (chairman  of 
the  subcommittee)  presiding. 

Present:  Representatives  Carlos  J.  Moorhead,  F.  James  Sensen- 
brenner,  Jr.,  Howard  Coble,  Bob  Goodlatte,  George  W.  Gekas,  Mar- 
tin R.  Hoke,  Patricia  Schroeder,  and  John  Conyers,  Jr. 

Also  present:  Thomas  E.  Mooney,  chief  counsel;  Mitch  Glazier, 
assistant  counsel;  Veronica  Eligan,  secretary;  Betty  Wheeler,  mi- 
nority counsel;  and  Susie  Park,  intern. 

Mr.  Moorhead.  The  hearing  will  come  to  order. 

Today  the  subcommittee  is  conducting  a  second  day  of  hearings 
on  H.R.  989,  the  Copyright  Term  Extension  Act  of  1995.  H.R.  989 
would  extend  the  term  of  ownership  of  an  individually  copjn^ighted 
work  from  the  life  of  the  author  plus  50  years  to  the  life  of  the  au- 
thor plus  70  years,  and  the  works  for  hire  from  75  to  95  years.  This 
change  will  more  closely  resemble  the  new  directive  implemented 
by  the  European  Union  member  states,  who  are  among  the  largest 
users  of  our  cop3nrighted  works. 

Last  time  the  Congress  considered  and  enacted  copyright  term 
extension  legislation  was  in  1976.  At  that  time  the  House  report 
noted  that  copyright  conformity  provides  certainty  and  simplicity  in 
international  business  dealings.  The  intent  of  the  1976  act  was 
twofold:  first,  to  bring  the  term  for  works  by  Americans  into  agree- 
ment with  the  then  minimum  term  provided  by  European  coun- 
tries; and,  second,  to  assure  the  author  and  his  or  her  heirs  of  their 
fair  economic  benefits  derived  from  the  author's  work.  The  1976 
law  needs  to  be  revisited  because  neither  of  these  objectives  is  cur- 
rently being  met. 

In  October  1993,  the  European  Union  adopted  a  directive  man- 
dating copyright  term  protection  equal  to  the  life  of  the  author  plus 
70  years  for  all  works  originating  in  the  E.U.,  no  later  than  the 
first  of  July  this  year.  The  E.U.  action  has  serious  trade  implica- 
tions for  the  United  States. 

The  United  States  and  the  European  Union  nations  are  all  sig- 
natories of  the  Berne  Copyright  Convention,  which  includes  the  so- 
called  rule  of  the  shorter  term,  which  accords  copyright  protection 
for  a  term  which  is  the  shorter  of  life  plus  70  years  or  the  term 

(155) 


156 

of  the  copyright  in  the  country  of  origin.  Once  this  directive  is  im- 
plemented, United  States  works  will  only  be  granted  copyright  pro- 
tection for  the  shorter  life  plus  50-year  term  before  falling  into  the 
public  domain  in  Europe,  whereas  all  of  the  others  will  continue  on 
for  the  70  years. 

The  main  reasons  for  this  extension  of  term  are  fairness  and  eco- 
nomics. If  the  Congress  does  not  extend  to  Americans  the  same 
copyright  protection  afforded  their  counterparts,  American  creators 
will  have  20  years  less  protection  than  their  European  counter- 
parts— 20  years  during  which  Europeans  will  not  be  paying  Ameri- 
cans for  their  copyrighted  works.  Europeans  buy  more  works  of 
American  artists  than  they  do  of  any  other  country's  nationals.  Any 
imbalance  would  be  harmful  to  the  country  and  work  a  hardship 
on  American  creators. 

I  would  like  to  be  introduced — to  introduce  our  ranking  member 
at  this  time,  but  all  of  us  are  having  two  or  three  markups  or  hear- 
ings this  morning  all  going  on  at  the  same  time.  I  have  two  mark- 
ups going  on  right  now,  plus  this  hearing,  and  I  know  Howard  Her- 
man and  Mrs.  Schroeder  and  Barney  Frank  and  many  of  the  other 
members  have  the  same  problem. 

I  will  now  introduce  Jim  Sensenbrenner. 

Mr.  Sensenbrenner.  Thank  you  very  much,  Mr.  Chairman. 

This  subcommittee  has  important  work  to  do,  and  this  bill  is  an 
important  issue  that  is  before  the  subcommittee.  We've  had  a  num- 
ber of  hearings  on  copyright  and  patent  legislation,  and  I  expect 
that  the  subcommittee  will  take  action  on  much  of  this  legislation. 

There  is  one  piece  of  legislation,  however,  that  hasn't  had  any  ac- 
tion, and  that's  H.R.  789,  which  relates  to  background  music  and 
licensing  fees  that  have  to  be  paid  by  owners  of  retail  establish- 
ments. That's  just  as  important  as  this  legislation  is,  and  there 
have  been  some  negotiations  that  have  been  going  on  between  par- 
ties on  both  sides  of  the  issue.  Another  negotiation  session  is  sched- 
uled for  July  28,  a  little  bit  more  than  2  weeks  from  now. 

Let  me  say  that  the  first  two  negotiation  sessions  have  gotten  no- 
where in  terms  of  resolving  the  problem  of  retailers  having  to  pay 
licensing  fees  for  having  the  radio  on  or  having  the  television  on. 
I  will  not  look  at  this  bill  favorably  unless  there  is  some  legislative 
action  on  H.R.  789  or  something  similar  to  it,  because  leaving  the 
music  licensing  fee  issue  the  way  it  is  now  in  the  passage  of  this 
bill  will  simply  allow  the  licensure  organizations  like  ASCAP  and 
BMI  to  harass  retailers  for  another  20  years.  I  don't  think  that 
that's  acceptable.  It  is  not  acceptable  to  the  one-quarter  of  the 
House  of  Representatives  that  have  cosponsored  H.R.  789,  and  it 
seems  to  me  that  this  issue  has  to  be  dealt  with  as  a  package. 

And  I  thank  the  chairman  for  giving  me  this  time. 

Mr.  MOORHEAD.  Our  ranking  minority  member  of  the  full  Judici- 
ary Committee,  John  Conyers,  is  here.  John. 

Mr.  Conyers.  Good  morning,  Mr.  Chairman. 

I'm  just  trying  to  get  the  import  of  my  colleague  from  Wisconsin's 
remarks  as  I  came  in.  I  guess  this  is  what  they  call  in  the  music 
business  a  tie-in.  You  don't  get  one  without  the  other.  What  I  want 
to  do  is  look  at  his  bill,  though,  and  find  out  what  the  other  is,  and 
I'm  sure  I'll  have  a  reaction  to  it.  I  don't  know  how  happy  I'll  be, 


157 

but  I'd  like  to  reserve  any  other  additional  comments  that  I  may 
make  for  later  on  in  the  hearing. 

Thank  you. 

Mr.  MOORHEAD.  The  gentleman  from  Virginia,  Mr.  Goodlatte. 

Mr.  Goodlatte.  I'd  just  like  to  thank  the  chairman  for  holding 
these  hearings.  I  don't  have  any  comments  at  this  time.  Thank  you. 

Mr.  MooRHEAD.  Our  first  witness  will  be  Ms.  Marybeth  Peters, 
who  is  the  Register  of  Copyrights  for  the  United  States.  From  1983 
to  1994,  Ms.  Peters  held  the  position  of  Policy  Planning  Advisor  to 
the  Register.  She  also  served  as  Acting  General  Counsel  of  the 
Copyright  Office,  Chief  of  both  the  Examining  and  Information  Ref- 
erence Divisions.  Ms.  Peters  holds  an  undergraduate  degree  from 
Rhode  Island  College  and  a  law  degree  from  George  Washington 
University.  She  has  served  as  a  consultant  on  copyright  law  at  the 
World  Intellectual  Property  Organization  and  authored  the  "Gen- 
eral Guide  to  the  Copyright  Act  of  1976." 

Welcome,  Ms.  Peters. 

Our  second  witness  on  the  first  panel  will  be  Ambassador 
Charlene  Barshefsky,  the  Principal  Deputy  U.S.  Trade  Representa- 
tive. Ambassador  Barshefsky  has  been  instrumental  in  achieving 
important  intellectual  property  trade  agreements,  most  recently 
helping  to  formulate  an  extensive  intellectual  property  rights 
agreement  with  China.  She  was  the  key  policymaker  and  nego- 
tiator of  the  Comprehensive  Framework  Agreement  with  Japan 
which  serves  to  protect  American  copyright  owners  in  an  important 
consumer  market.  Ambassador  Barshefsky  has  also  led  the  admin- 
istration's effort  to  develop  bilateral  regional  trade  initiatives  in 
South  and  Central  America,  with  particular  emphasis  on  intellec- 
tual property  rights  in  Brazil  and  i^o-gentina. 

Welcome,  Ambassador  Barshefsky. 

Our  third  witness  on  the  first  panel  is  Commissioner  Bruce  Leh- 
man, the  Assistant  Secretary  of  Commerce  and  Commissioner  of 
Patents  and  Trademarks  of  the  United  States.- Commissioner  Leh- 
man served  as  counsel  to  this  subcommittee  for  9  years  and  as 
chief  counsel  for  a  number  of  those  years.  Mr.  Lehman  has  been 
a  key  player  on  intellectual  property  issues  between  the  United 
States  and  Asia  and  the  European  Union,  and  has  also  headed  nu- 
merous delegations  to  consider  intellectual  property  issues  at  the 
World  Intellectual  Property  Organization. 

Welcome,  Commissioner  Lehman. 

We  have  written  statements  from  our  first  three  witnesses, 
which  I  ask  unanimous  consent  be  made  a  part  of  the  record,  and 
I  ask  you  each  to  summarize  your  statements  in  10  minutes  or  less. 
I  ask  that  the  subcommittee  hold  their  questions  for  all  three  wit- 
nesses until  they  have  completed  their  oral  presentations. 

We  will  begin  with  Ms.  Peters. 

STATEMENT  OF  MARYBETH  PETERS,  REGISTER  OF  COPY- 
RIGHTS AND  ASSOCIATE  LIBRARIAN  FOR  COPYRIGHT  SERV- 
ICES, LIBRARY  OF  CONGRESS 

Ms.  Peters.  Thank  you. 

Mr.  Chairman,  members  of  the  subcommittee,  I  am  pleased  to 
offer  my  comments  on  H.R.  989,  the  Copyright  Term  Extension  Act 
of  1995. 


9!).9R7     QA  _  A 


158 

In  1993,  before  any  legislation  was  introduced,  the  Copyright  Of- 
fice initiated  a  study  on  duration  of  copyright  which  included  a 
hearing  as  well  as  a  long  comment  period.  I  have  submitted  a  de- 
tailed analysis  and  statement  for  the  record.  Much  of  what  we 
learned  is  reflected  in  that  statement.  I  will  speak  briefly  now  on 
what  I  believe  are  some  of  the  more  important  factors  to  be 
weighed  in  considering  this  legislation. 

This  legislation,  which  appears  in  part  to  be  an  attempt  to  have 
equivalent  terms  of  protection  with  the  important  countries  of  the 
European  Union,  would  increase  copyright  terms  of  all  works,  in- 
cluding existing  works,  for  20  years.  This  would  be  a  significant 
change  in  our  copyright  law,  and  it  would  have  a  significant  impact 
on  our  society. 

Our  Constitution  gives  Congress  the  power  to  grant  to  authors 
exclusive  rights  for  limited  times  to  promote  the  progress  of  science 
and  the  arts.  Thus  copyright  is  granted  to  promote  the  public  inter- 
est by  stimulating  creativity  and  by  stimulating  the  dissemination 
of  knowledge.  Authors  are  given  control  over  their  works  as  an  in- 
centive to  produce.  This  control,  however,  is  for  a  limited  time. 
After  this  time,  the  work  becomes  part  of  the  public  domain  and 
is  available  to  be  used  by  society  as  a  whole. 

When  considering  the  constitutional  mandate,  a  number  of  ques- 
tions are  raised.  First,  is  this  legislation  in  the  public  interest?  Will 
it  encourage  authors  to  create  and  publishers  to  disseminate  new 
works?  If  so,  at  what  cost?  Specifically,  what  will  be  the  effect  of 
freezing  the  public  domain  for  20  years?  Second,  does  this  legisla- 
tion violate  the  limited  times  provision  of  the  Constitution? 

In  attempting  to  evaluate  how  extending  the  term  would  stimu- 
late creativity,  it  is  difficult  to  see  how  moving  from  a  term  of  life- 
plus-50  to  life-plus-70  will  encourage  more  authors  to  write.  It 
could,  however,  provide  additional  income  that  would  finance  the 
production  and  publication  of  new  works.  Moreover,  I  believe  there 
is  a  broader  public  interest. 

Mr.  Chairman,  in  your  statement  introducing  this  bill,  and  again 
today  in  your  opening  remarks,  you  emphasized  the  importance  of 
having  harmonization  of  copyright  terms  of  protection  among  our 
major  trading  partners.  As  you  said,  conformity  vis-a-vis  the  copy- 
right term,  as  well  as  conformity  in  other  areas,  provides  certainty 
and  simplicity  in  international  business  dealings. 

You  also  noted  that  American  authors  should  be  given  the  same 
protection  afforded  their  counterparts  in  Europe.  I  agree  with  this 
assessment.  The  importance  of  granting  American  authors  the 
same  protection  as  that  granted  to  authors  elsewhere  has  long  been 
a  position  of  the  United  States.  When  the  copyright  term  was  first 
extended  in  1832,  this  was  the  argument  on  which  the  increase 
was  based.  The  rapidly  expanding  international  markets  for  copy- 
righted works,  especially  in  light  of  the  global  information  super- 
highway, supports  such  an  effort. 

Moreover,  the  reason  for  amending  our  law  at  this  time  is  to 
bring  us  into  conformity  with  that  of  the  European  Union.  Unless 
the  United  States  extends  its  terms,  our  authors  and  other  copy- 
right owners  will  be  denied  money  that  they  otherwise  would  be 
entitled  to  receive. 


159 

The  Copyright  Office  supports  H.R.  989  for  two  reasons.  One,  in 
the  global  information  society,  we  have  a  need  to  harmonize  copy- 
right terms  throughout  the  world,  and  we  believe  that  life-plus-70 
will  become  the  international  norm.  Two,  as  a  leading  creator  of 
copyrighted  works,  the  United  States  should  not  wait  until  it's 
forced  to  increase  the  term.  Rather,  it  should  set  the  example  for 
other  countries. 

We  support  this  bill  largely  on  international  grounds.  However, 
we  are  not  unmindful  of  some  negative  impacts  that  this  bill  would 
have  in  the  United  States.  Enactment  of  this  bill  in  one  stroke 
freezes  works  from  coming  into  the  public  domain  for  20  years. 
This  involves  works  copyrighted  between  1920  and  1940.  I  am  con- 
cerned about  the  effect  that  this  will  have  on  libraries,  archives, 
and  educational  institutions  who  are  striving  to  improve  American 
education  and  who  serve  as  the  guardian  of  our  Nation's  cultural 
heritage. 

Libraries,  like  the  Library  of  Congress  through  its  National  Digi- 
tal Library  efforts,  are  attempting  to  bring  unique  materials,  in- 
cluding those  still  protected  by  copjoight,  to  the  American  edu- 
cational community.  The  Library  of  Congress  has  been  diligent  in 
seeking  copyright  permissions  for  its  digital  library  projects.  How- 
ever, much  of  the  unique  materials,  photographs,  prints,  manu- 
scripts, letters  are  very  difficult  to  determine  the  copyright  status 
and  the  copyright  terms  of  such  works.  Finding  the  current  copy- 
right owner  is  almost  impossible.  The  Library  has  spent  thousands 
of  hours  searching  copyright  records  and  seeking  permissions. 

Thus,  considering  the  need  to  balance  the  rights  of  copyright 
owners  with  the  benefits  to  be  gained  by  the  public,  the  Copyright 
Office  opposes  an  additional  term  of  10  years  to  the  unpublished 
works  covered  by  section  303.  The  authors  of  these  works  died  be- 
fore 1953.  Many  libraries,  archives,  and  historical  societies,  as  well 
as  authors  and  publishers,  have  been  anxiously  awaiting  January 
1,  2003,  when  these  works  are  scheduled  to  enter  the  public  do- 
main. 

We  also  suggest  a  very  narrow  exemption  for  the  additional  20- 
year  term  to  provide  instructional  materials  to  American  schools  by 
nonprofit  libraries,  archives,  historical  societies,  and  the  like.  In 
addition,  there  are  other  issues  that  were  raised  by  four  library  as- 
sociations in  their  letter  of  July  11  and  by  Dr.  Billington,  the  Li- 
brarian of  Congress,  in  his  letter  of  July  12.  The  problems  identi- 
fied are  preservation  of  materials  and  the  ability  to  provide  users 
with  access  of  those  materials. 

These  problems  are  not  caused  by  this  bill.  They  are,  however, 
exacerbated  by  it.  This  is  because  the  older  the  work  is,  the  harder 
it  is  to  find  the  copyright  owner  and  the  more  it  costs  to  obtain  per- 
mission to  use  the  work. 

Libraries  and  archives  play  a  critically  important  role  in  our 
country's  social  and  cultural  welfare,  as  well  as  its  economic 
growth.  The  unique  materials  in  their  collections  must  be  pre- 
served and  made  available  to  our  citizens. 

I  would  like  to  see  these  problems  solved,  and  I  hereby  offer  the 
services  of  the  Copyright  Office  and  the  Library  of  Congress  to  ad- 
dress the  issues  of,  one,  the  unbeatable  copyright  owner;  two,  pres- 
ervation by  libraries  of  these  unique  materials;  three,  access  to  col- 


160 

lections  of  works  that  are  no  longer  commercially  available  or  via- 
ble. The  Office  has  served  this  committee  in  the  past  in  the  revi- 
sion of  the  Copyright  Act  of  1909,  and  it  served  it  again  recently 
in  the  Copyright  Reform  Act,  when  through  an  advisory  committee 
recommendations  were  made  to  solve  a  number  of  problems  that 
had  been  identified  with  the  registration  system.  I  believe  we  can 
serve  this  same  useful  role  now. 

I  would  welcome  the  opportunity  to  discuss  with  you  and  your 
staff  the  specifics  of  how  the  Copyright  Office  can  assist  the  sub- 
committee in  its  work  on  these  important  issues.  Thank  you  for  the 
opportunity  to  testify  here  today. 

[The  prepared  statement  of  Ms.  Peters  follows:] 


161 

Prepared  Statement  of  Marybeth  Peters,  Register  of  Copyright  and 
Associate  Librarian  for  Copyright  Services,  Library  of  Congress 

H.R.  989  proposes  to  extend  the  basic  United  States  copyright  term  by  twenty  years  in 
order  to  reflect  increased  life  expectancy  and  to  harmonize  the  U.S.  copyright  term  with  that  of 
the  European  Union.  The  most  prominent  change  ordered  by  the  EU  Directive  is  the  requirement 
that  member  states  recognize  a  general  duration  standard  of  life  of  the  author  plus  70  years. 
With  respect  to  countries  outside  of  the  EU,  the  Directive  applies  the  rule  of  the  shorter  term, 
meaning  countries  having  a  shorter  term  will  be  limited  to  the  term  established  by  the  country 
of  origin. 

The  development  of  a  global  information  infrastructure  where  consumers  can  purchase 
directly  from  creators  located  anywhere  in  the  world  is,  in  itself,  a  strong  argument  for 
harmonization  of  copyright  term.  Other  valid  arguments  include  the  loss  of  revenues  for  U.S. 
authors  by  the  application  of  the  rule  of  the  shorter  term  and  the  fact  that  the  existing  terms  may 
not  cover  an  author  during  his  or  her  lifetime,  a  widow  or  widower,  or  one  generation  of  heirs. 

This  is  the  first  time  that  the  United  States  has  considered  extending  the  copyright  term 
since  the  1976  act  went  into  effect  on  January  1,  1978.  A  key  consideration  is  whether  H.R. 
989  satisfies  the  constitutional  goal  of  fostering  the  creation  and  dissemination  of  intellectual 
works. 

While  the  Copyright  Office  generally  supports  H.R.  989,  it  does  oppose  adding  ten  years 
to  the  term  of  unpublished  works  covered  by  17  U.S.C.  303.  We  also  question  whom  the 
beneficiary  of  the  extra  20  years  should  be,  especially  in  cases  where  there  is  no  existing 
termination  right.  Moreover,  we  condition  our  support  on  the  solution  of  certain  problems  faced 
by  libraries  and  educational  institutions  with  respect  to  preservation,  access  and  appropriate 
nonprofit  educational  uses  that  are  beyond  fair  use.  We  have  made  several  suggestions 
concerning  approaches  for  resolving  those  issues,  including  creating  a  licensing  system  for 
authors  and  owners  who  cannot  be  located,  developing  guidelines  under  section  108  for  material 
that  can  be  used  without  payment  for  nonprofit  educational  purposes  or  creating  an  exemption 
for  nonprofit  uses  related  to  instructional  activities  in  the  extended  term. 

Solutions  to  these  problems  might  be  more  forthcoming  if  this  subcommittee  directed  the 
parties  to  work  these  problems  out.  The  Copyright  Office  would  be  willing  to  assist  in 
facilitating  agreement  on  possible  solutions  to  the  problems  of  preservation  and  access  of  older 
copyrighted  works. 

r:\mk\HR989.one 


162 


Chairman  Moorhead,  joined  by  Rqiresenutives  Schroeder,  Coble,  Goodlane,  Bono,  Gekas, 
Berman,  Nadler,  Clement,  and  Gallegly,  '  introduced  H.R.  989  on  February  16,  1995.  The  bill  known 
as  the  "Copyright  Term  Extension  Act  of  1995"  would  add  twenty  years  to  the  basic  U.S.  copyright  term, 
bringing  it  to  life  plus  seventy  years.  Senator  Hatch  introduced  an  identical  bill,  S.  483,  on  March  2, 
1995.  In  part  these  bills  are  a  response  to  a  1993  Directive  of  the  European  Union  (EU)  on  harmonizing 
copyright  term;  ^  the  thrust  of  this  Directive  is  the  requiremenl  that  member  states  recognize  a  general 
copyright  duration  standard  of  life  of  the  author  plus  70  years.  It  is  clear  that  the  EU  Directive  on  Term 
will  ultimately  result  in  a  longer  tenn  for  most,  if  not  all,  European  nations,  since  countries  wishing  to 
join  the  Union  or  the  European  Economic  Area  will  also  be  required  to  go  to  life  plus  70.  Also  certain 
non-European  countries  already  have  longer  terms  or  will  consider  extending  them  in  the  future.  With 
respect  to  countries  outside  of  the  EU,  the  Directive  applies  the  rule  of  the  shoiter  term,  meaning 
countries  having  a  shoner  period  of  protection  will  be  limited  to  the  term  established  by  the  country  of 
origiiL  ' 


Since  then  four  other  representatives  have  signed  on  to  H.R.  989:  Becerra.  Gordon,  Quillen  and  Conyers. 
Council  Directive  93/98,  1993  OJ.  (L  290/9),  [hereinafter  EU  Direaive  on  Term]. 
EU  Directive  on  Tenn,  an  7. 


dirr\dunuion.loc 
July  II,  199S 


163 


Under  current  U.S.  copyright  law,  the  EU  mandatory  adoption  of  the  rule  of  the  shoner  term 
will  mean  that  popular  U.S.  works  will  not  get  the  benefit  of  a  longer  term  in  any  of  the  EU  countries. 
Other  countries  with  longer  terms  than  life  plus  SO  may  also  move  to  make  any  period  of  protection 
longer  than  SO  years  reciprocal.  The  question  of  harmonizing  copyright  term  in  all  countries  is  critical 
for  U.S.  rightsholders.  Consequently,  with  some  reservations,  the  Copyright  Office  generally  supports 
term  extension.  Those  reservations  concern  the  preservation  and  access  to  unpublished  and  other  works 
that  are  no  longer  commercially  available. 

Congressman  Moorhead,  in  introducing  H.R.  989,  noted  that  times  have  changed  since  duration 

was  considered  in  the  1976  revision  effort: 

The  last  time  the  Congress  considered  and  enacted  copyright  term  extension 
legislation  was  in  1976.  At  that  time  the  House  report  noted  that  copyright 
conformity  provides  certainty  and  simplicity  in  iiuemational  business  dealings. 
The  intent  of  the  1976  act  was  two-fold:  Pint,  to  bring  the  term  for  works  by 
Americans  into  agreement  with  the  then  minimnin  term  provided  by  European 
countries;  and  second,  to  assure  the  author  and  his  or  her  heirs  of  the  fair 
economic  benefits  derived  from  the  author's  work.  The  1976  law  needs  to  be 
revisited  since  neither  of  these  objectives  is  being  met  * 

My  statement  summarizes  the  background  and  history  of  copyright  duration  in  the  United  States, 
analyzes  the  changes  proposed  in  H.R.  989  in  light  of  existing  U.  S.  copyright  law  and  the  EU  Directive, 
notes  and  evaluates  the  major  arguments  for  aixl  against  term  extension  in  light  of  the  considerations  the 
House  Judiciary  Conmiittee  weighed  when  extending  the  copyright  term  in  1976,  aixl  sunmiarizes  certain 
questions  and  issues  in  the  conclusions. 


141  Cong.  Rec.  E379  (daily  ed.  Feb.  16.  1995)  (statement  of  Rep.  Moorhead). 


dirr\<lunboii.loc 
July  II.  L893 


164 


II.   HISTORY  OF  DURATION  OF  COPYRIGHT  TERM  IN  UMTED  STATES  LAW 

The  history  of  the  duration  of  copyright  protection  in  the  United  States  reveals  a  strong 
international  influence.  When  it  came  time  to  adopt  the  first  copyright  law,  Congress  looked  to  the 
English  common  law  system,  the  model  it  knew  best.  England  viewed  intellectual  property  as  a  property 
right  but  also  viewed  it  in  certain  functional  terms  —  as  a  device  "to  promote  creative  endeavors,  on  the 
one  hand,  and  to  ensure  maximum  public  access  to  the  benefits  of  these  endeavors  on  the  other. " '  Early 
U.S.  copyright  statutes  adopted  English  duration  standards.  As  discussed  below,  the  United  States 
abandoned  the  standard  of  one  fixed  term  of  protection,  renewable  for  an  additional  fixed  term  in  1976 
when  it  adopted  the  life  of  the  author  plus  SO  years,  standard  of  the  Berne  Convemioa  '  At  that  time 
most  developed  and  iixlustrialized  countries  with  the  exception  of  the  United  States, '  belonged  to  Berne 
and  the  Berne  minimum  term  was  life  of  the  author  plus  50,  years. 

A.         DEVELOPMENT  OF  FEDERAL  COPYRIGHT  LAW 

The  first  federal  copyright  law  enaaed  in  1790  stems  from  the  constitutional  clause  giving 
Congress  the  power  "To  promote  the  Progress  of  Science  and  useful  Arts,  by  securing  for  limited  Times 


'  Sam  Ricketson.  The  Bcme  Convention  for  the  Protection  of  Literaiv  and  Anistic  Works:  1886-1986  321 
(Centre  for  Cotmnercial  Law  Snidies  Queen  Mary  College  1987). 

'  See  Convention  concerning  the  Creation  of  an  International  Union  for  the  Protection  of  Literary  and  Artistic 
Works  (Sept.  9,  1886,  revised  in  1908,  1928,  1948,  1967,  1971).  Berne  Convention  art.  2(8)  (Paris  text) 
[hereinafter  Berne  Convention!. 

'      China  and  the  Soviet  Union  were  not  members  of  Benie  at  that  time  either. 

dirr^unaonloc 

July  11.  1995  3 


165 


to  Authors  and  Inventors  the  exclusive  Right  to  their  respective  Writings  and  Discoveries."  '    The 

constitutional  clause  thus  sets  out  two  goals  "to  foster  the  growth  of  learning  and  culture  for  the  public 

welfare,  and  the  grant  of  exclusive  rights  to  authors  for  a  limited  time  is  a  means  to  that  end."  ' 

Although  the  primary  purpose  of  the  copyright  law  is  to  foster  the 
creation  and  dissemination  of  intellectual  works  for  the  public  welfare, 
It  also  has  an  important  secondary  purpose.  To  give  authors  the  reward 
due  them  for  their  contribution  to  society. 

These  two  purposes  are  closely  related.  Many  authors  could  not  devote 
themselves  to  creative  works  without  the  prospect  of  remuneration.  By 
givmg  authors  a  means  of  securing  the  economic  reward  afforded  by  the 
market,  copyright  stimulates  their  creation  and  dissemination  of 
intellectual  works.  Similarly,  copyright  protection  enables  publishers  and 
other  distributors  to  invest  their  resources  in  bringing  those  works  to  the 
public.  "• 

Authors  would  not  be  able  to  continue  to  create  unless  they  earned  income  on  their  finished 
works.  The  public  benefits  not  only  from  an  author's  original  work  but  also  from  his  or  her  further 
creations.  Although  this  truism  may  be  illustrated  in  many  ways,  one  of  the  best  examples  is  Noah 
Webster  who  supported  his  entire  family  from  the  earnings  on  his  speller  and  grammar  during  the  twenty 
years  he  took  to  complete  his  dictionary. 

1.  The  Fnglish  Stafirt*  nf  Anii»- 

The  Statute  of  Anne,  enacted  in  England  in  1710,  was  the  first  copyright  statute  to  gain  wide 
anentioa  Its  provisions  served  as  a  model  not  only  for  the  United  States,  but  many  other  nations  as  well. 


US.  Const  art  I,  §8,  cl.  8. 


'  REGISTER  OF  COPYRIGHTS  ON  THE  GENERAL  REVISION  OF  THE  U.S.  COPYRIGHT  LAW, 
HOUSE  COMM.  ON  THE  JUDICIARY.  87TH  CONG.,  1ST  SESS.,  COPYRIGHT  LAW  REVISION  (Pan  1.  5) 
(Comm.  Print  1961).   [hereinafter  Copyright  Law  Revision  Part  1]. 

"*  Id.  at  5-6.  These  principles  are  noted  in  nx>re  detail  in  H.Rep.  No.  2222,  to  Congress,  2d  Sess.  on  the 
Copyright  Act  of  1909.  'Not  thai  any  panicular  class  of  citizens,  however  worthy,  may  benefit,  but  because  the 
policy  is  believed  to  be  for  the  benefit  of  the  great  body  of  people,  in  that  it  will  stimulate  writing  and  invention 
to  give  some  bonus  to  authon  and  inventors."  I^ 

dirrxdunboaloc 

luly  II.  I99S  4 


166 


This  historic  legislation  was  adopted  at  the  insistence  of  publishers,  who  were  experiencing  increasing 
problems  with  literary  piracy. 

The  Statute  of  Anne  granted  an  author  and  his  assigns  an  original  term  of  14  years  from  the  date 
of  publication,  plus  a  second  term  of  14  years  should  the  author  be  living  at  the  expiration  of  the  first 
term.  "  In  1814,  England  changed  its  duration  standard  to  a  term  of  28  years  plus  the  remainder  of 
the  author's  namral  life,  should  he  or  she  be  living  at  the  expiration  of  the  first  term.  '^  In  1842, 
England  again  extended  the  copyright  term  to  42  years  or  the  life  of  the  author  plus  seven  years, 
whichever  should  be  longer.  "  England  was  one  of  die  original  signatory  couiuries  of  the  Berne 
Convention  and  has  been  a  member  since  December  5,  1887.  The  original  Berne  text  left  the  copyright 
term  to  the  member  country  in  order  to  encourage  countries  to  join.  In  1908,  however,  the  Berne 
Convention  went  to  a  term  of  life  of  the  author,  plus  SO  years.  "  Nine  out  of  fifteen  Berne  countries 
had  gone  to  life  plus  fifty  by  1908.  '^  In  the  Copyright  Act  of  1911,  England  extended  copyright 
duration  to  the  life  of  the  author  plus  SO  years.  '* 

2.         Deyelonment  in  Colonial  America. 

Under  the  Articles  of  Confederation,  12  of  the  original  13  states  enacted  copyright  statutes.  Of 
these  12  states,  six  applied  the  duration  standard  of  the  Statute  of  Anne:  an  original  term  of  14  years  from 


"  8  Anne,  ch.  19.  1710. 

"  54  Geo.  3,  ch.  156. 

"  5  &  6  Vict,  ch  45. 

"  Berne  Convention  an.  7(1)  (Berlin  text).  This  term  was  made  compulsory  in  Brussels  in  1948. 

"  Ricketson.  supra  oote  5,  at  325. 

"  I  &  2  Geo.  5,  ch.  34. 


dirrVdunaon  loc 
July  II,  1993 


167 


the  date  of  first  publication,  plus  a  second  term  of  14  years  should  the  author  be  living  at  the  expiration 
of  the  first  term.  "  The  other  six  states  adopted  single  terms  ranging  from  14  years  to  21  years.  ' 

3.  The  1790  CopvriEfat  Act. 

In  the  deliberations  over  the  drafting  of  the  U.S.  Constitution,  there  appears  to  have  been  near 
unanimity  among  the  framers  that  copyright  and  patent  should  fall  within  federal  powers.  James  Madison, 
in  writing  the  Federalist  Pai?ers.  only  devoted  one  paragraph  to  the  Copyright-Patent  Clause  in  which  he 
observed  that  the  "utility"  of  the  provision  could  "scarcely  be  questioned."  One  of  the  early  tasks 
performed  by  the  first  Congress  was  passage  of  the  Copyright  Act  of  1790.  "  This  historic  legislation 
established  an  initial  copyright  duration  term  of  14  years,  to  be  followed,  should  the  author  still  be  living, 
by  a  14  year  renewal  term.  This  term  was  the  same  as  the  Statute  of  Anne's  and  also  that  of  six  states 
imder  the  Articles  of  Confederation.  In  1831,  Congress  increased  the  term  to  28  years,  with  a  renewal 
term  of  14  years.  ^''  The  purpose  of  increasing  copyright  duration  was  to  place  "authors  in  this  country 
more  nearly  upon  an  equality  with  authors  of  other  countries.'  "  England  had,  as  previously  meiuioned, 
changed  its  term  in  1814  to  28  years  plus  life  if  the  author  was  still  living  at  the  end  of  the  28th  year. 


"  James  J.  Guinan,  Duration  of  Copyright.  Coovrieht  Office  Smdv  No.  30  (1957),  Subcomm.  on  Patents. 
Tradgmaric  and  Copyrights  of  the  "^at^  rnmm  on  the  Judiciary.  86th  Cong.  2d  Sess.,  COPYRIGHT  LAW 
REVISION  STUDIES  1  (Comm.  Print  1960). 

"  Massachusetts,  Rhode  bland,  and  Virginia  adopted  a  single  term  of  21  yean.  New  Hampshire  adopted  a 
single  term  of  20  yean,  and  North  and  South  Carolina  adopted  a  single  term  of  14  years. 

"      1  Stat.  124  (1790). 

'-'     4  Stat.  436(1831). 

"  Repon  of  the  Comminee  on  the  Judiciary  of  the  House  of  Representatives,  7  Register  of  Debates,  appendix 
CXIX. 

dirr\dunaon.loc 

July  II.  199}  6 


168 


B.         SIGMnCA>fT  20TH  CENTURY  REVISIONS  OF  COPYRIGHT  TERM 

1.         The  1909  Copyright  Act. 

When  Congress  increased  the  U.S.  copyright  term  in  1909,  Berne  had  already  adopted  life  of  the 
author  plus  50  years  for  the  basic  copyright  term.  The  new  U.S.  provision  created  a  basic  copyright  term 
of  28  years  from  the  date  of  first  publication  or  registration,  plus  a  renewal  term  of  28  years.  "  Early 
drafts  of  this  legislation  proposed  that  the  basic  copyright  term  be  life  of  the  author  plus  50  years. 
Copyright  proprietors  advanced  two  arguments  in  support  of  the  life  plus  50  duration.  They  argued  that 
authors  were  increasingly  outliving  the  copyright  protection  in  their  works  and  that  it  was  unfair  for 
authors  to  lose  their  protection  in  their  old  age.  Second,  the  life  plus  50  standard  was  gaining  increasing 
acceptance  as  the  international  standard  of  protectioa 

Although  little  organized  opposition  was  raised  against  the  life  plus  50  term.  Congress  was  not 
willing  to  accept  such  a  radical  departure  from  what  it  saw  as  American  copyright  tradition.  The  U.S. 
renewal  system  permitted  works  that  were  not  commercially  valuable  and,  therefore,  not  renewed  to  go 
imo  die  public  domain  after  28  years.  The  increase  in  the  renewal  term  from  14  years  to  28  years 
appears  to  have  been  the  congressional  response  to  copyright  proprietors'  concerns  that  the  term  should 
be  longer.  A  renewal  mechanism  was  preferred  over  one  set  term  because  it  gave  authors  who  sold  their 
rights  for  less  than  full  value  a  second  chance  to  secure  a  more  equitable  return  in  the  renewal  period  and 
because  it  placed  works  that  were  not  renewed  in  the  public  domain  where  they  could  be  used  by 
anyone." 


"      35  Stat  1075,  17  U.S.C.  §24. 

"     H.R.  Rep.  No.  2222,  60th  Cong.  2d  Sess.  (1909). 

dirr\dunaoo.loc 

July  II,  1995  7 


169 


2.  Copyright  Revision. 

Congress  was  finally  willing  to  embrace  the  international  standard  of  life  plus  50  when  it  revisited 
the  issue  in  deliberations  leading  to  the  1976  Copyright  Act.  In  the  initial  report  prepared  "to  pinpoint 
the  issues  and  stimulate  public  discussion, "  •*  the  Copyright  Office  proposed  a  duration  of  28  years  from 
first  public  dissemination,  coupled  with  a  renewal  term  of  48  years.  This  would  bring  the  maximum  term 
from  56  to  76  years.  "  The  Copyright  Office  Report  noted  two  general  approaches  to  measure  the 
copyright  term  (1)  from  the  dissemination  of  the  work  or  (2)  from  the  death  of  the  author.  It  concluded 
that  'a  term  based  on  dissemination  has  the  greater  advantages  for  the  public,  and  that  the  principal 
purposes  of  a  term  based  on  the  death  of  the  author  can  be  achieved  by  a  sufficiently  long  term  based  on 
dissemination."  ^*  The  Office's  proposal  was  widely  criticized;  the  parties  preferred  a  life  plus  50  year 
standard.  ^^  By  1964,  the  working  draft  proposed  one  copyright  term,  life  plus  50  years  for  most  works.  ^' 
Debate  continued,  however,  on  how  long  this  term  should  be  and  what  should  be  done  about  corporate 
works  and  subsisting  copyrights. 


'*     Copyright  Law  Pan  1,  at  Preface,  p.  i. 

•'      Id.  at  50. 

'*  Id.  at  48-49  (emphasis  added).  One  reason  the  Report  recommended  measuring  the  term  from  dissemination 
was  thai  approximately  40%  of  works  were  'corporate'  and  many  individual  works  were  HittAminati'H  anonymously. 

"  SUPPLEMENTARY  REPORT  OF  THE  REGISTER  OF  COPYRIGHTS  ON  THE  GENERAL  REVISION 
OF  THE  U.S.  COPYRIGHT  LAW:  1965  REVISION  BILL,  HOUSE  COMM.  ON  THE  JUDICL\RY.  89TH 
CONG..  1ST  SESS..  COPYRIGHT  LAW  REVISION  PART  6  (Comm.  Print  1965)  [hereinafter  Copyright  Uw 
Revision  Part  6];  REPORT  OF  THE  REGISTER  OF  COPYRIGHTS  ON  THE  GENERAL  REVISION  OF  THE 
US.  COPYRIGHT  LAW:  DISCUSSIONS  AND  COMMENTS,  HOUSE  COMM.  ON  THE  JUDICIARY,  88TH 
CONG..  1ST  SESS..  COPYRIGHT  LAW  REVISION  PART  2  (Comm.  Prim  1963)  [hereinafter  Copyright  Uw 
Revision  Pan  2]. 

■'  PRELIMINARY  DRAFT  FOR  REVISED  U.S.  COPYRIGHT  LAW:  DISCUSSIONS  AND  COMMENTS 
ON  THE  DRAFT,  HOUSE  COMM.  ON  THE  KJDICL\RY,  88TH  CONG..  2D  SESS..  COPYRIGHT  LAW 
REVISION  PART  3,  19-20  (Comm.  Print  1964)  [hereinafter  Copyright  Law  Revision  Pan  31. 

dirr\duniioii.loc 

July  II.  1993  8 


170 


It  is  interesting  to  review  those  earlier  discussions.  The  opposing  arguments  are  set  out  by  two 

well  known  copyright  experts.   The  first  said: 

I  am  in  favor  of,  generally  speaking,  short  rather  than  long  terms.  I've 
never  yet  heard  any  case,  except  the  fact  that  it's  done  differently 
elsewhere,  for  a  longer  term,  and  if  you're  going  to  measure  by  life,  then 
life-plus-25.  That  takes  care  of  the  minority  [sic]  of  children,  and 
indeed  their  education,  even  these  days.  The  only  possible  case  it  doesn't 
take  care  of  is  the  case  of  a  very  young  author  who  dies  leaving  a  very 
young  wife,  and  my  only  answer  to  that  is  if  she  hasn't  been  able  to 
remarry  in  the  course  of  25  years  perhaps  this  copyright  shouldn't 
necessarily  continue  to  support  her.  *' 


The  second  said: 


I  would  prefer  that  protection  be  for  at  least  100  years,  rather  than  76, 
when  there  is  a  renewal.  It  is  not  unreasonable  to  allow  an  author  and 
his  heirs  to  keep  and  enjoy  property  rights  in  the  work  he  has  created  for 
at  least  that  long  —  particularly  since  others  will  be  exploiting  his  work 
for  profit  after  he  has  been  divested  of  it  '• 


3.  1976  Act 

Congress  reviewed  all  of  the  views  expressed  during  the  revision  period  when  determining 

the  appropriate  U.S.  copyright  term  and  ultimately  opted  for  a  basic  term  of  life  plus  50  years.   The 

House  Judiciary  Committee  summarized  seven  reasons  for  changing  the  copyright  term: 

1 .  The  present  56-year  term  is  not  long  enough  to  insure 
an  author  and  his  dependents  the  fair  economic  benefits 
from  his  works.  Life  expectancy  has  increased 
substantially,  and  more  and  more  authors  are  seeing  their 
works  fall  into  the  public  domain  during  their  lifetimes, 
forcing  later  works  to  compete  with  their  own  early 
works  in  which  copyright  has  expired. 


-'     Copyright  Law  Revision  Pan  2  at  90  (staiement  of  Professor  Ralph  S.  Brown). 
'°     Id.  at  3 16  (statement  of  Irwin  Kaip). 


dirrVdundoo.loc 
July  11.  1995 


171 


The  tremendous  growth  in  communications  media  has 
substantially  lengthened  the  commercial  life  of  a  great 
many  works.  A  short  term  is  panicularly  discriminatory 
against  serious  works  of  music,  literature,  and  an,  whose 
value  may  not  be  recognized  until  after  many  years. 

Although  limitations  on  the  term  of  copyright  are 
obviously  necessary,  too  shon  a  term  harms  the  author 
without  giving  any  substantial  benefit  to  the  public.  The 
public  frequently  pays  the  same  for  works  in  the  public 
domain  as  it  does  for  copyrighted  works,  and  the  only 
result  is  a  commercial  windfall  to  certain  users  at  the 
author's  expense.  In  some  cases  the  lack  of  copyright 
protection  actually  restrains  dissemination  of  the  work, 
siiKe  publishers  and  other  users  cannot  risk  investing  in 
the  work  unless  assured  of  exclusive  rights. 

A  system  based  on  the  life  of  die  author  would  go  a  long 
way  toward  clearing  up  the  conAision  and  uncertainty 
involved  in  the  vague  concept  of  "publication,"  and 
would  provide  a  much  simpler,  clearer  method  for 
computing  the  term.  The  death  of  the  audior  is  a 
definite,  determinable  event,  and  it  would  be  the  only 
date  that  a  potential  user  would  have  to  worry  about 
All  of  a  particular  author's  works,  including  successive 
revisions  of  thent,  would  fall  into  the  public  domain  at 
the  same  time,  thus  avoiding  the  present  problems  of 
determining  a  multitude  of  publication  dates  and  of 
distinguishing  "old'  and  "new"  matter  in  later  editions. 
The  bill  answers  the  problems  of  determining  when 
relatively  obscure  authors  died,  by  establishing  a  registry 
of  death  dates  and  a  system  of  presumptions. 

One  of  the  worst  features  of  the  present  copyright  law  is 
the  provision  for  renewal  of  copyright  A  substantial 
burden  and  expense,  this  unclear  and  highly  technical 
requirement  results  in  incalculable  amounts  of 
unproductive  work.  In  a  number  of  cases  it  is  the  ^ause 
of  inadvertent  and  unjust  loss  of  copyright  Under  a 
life-plus-50  system  the  renewal  device  would  be 
inappropriate  and  unnecessary. 

Under  the  preemption  provisions  of  section  30 1  and  the 
single  Federal  system  they  would  establish,  authors  will 
be  giving  up  perpetual,  unlimited  exclusive  common  law 
rights  in  their  unpublished  works,  including  works  that 
have  been  widely  disseminated  by  means  other  than 


dtrr\duniioa.loc 

July  11.  1995  10 


172 


publication.  A  statutory  term  of  life-plus-50  years  is  no 
more  than  a  fair  recompense  for  the  loss  of  these 
perpetual  rights. 

A  very  large  tnajority  of  the  world's  countries  have 
adopted  a  copyright  term  of  the  life  of  the  author  and  50 
years  after  the  author's  death.  Since  American  authors 
are  frequently  protected  longer  in  foreign  countries  than 
in  the  United  States,  the  disparity  in  the  duration  of 
copyright  has  provoked  consider  able  [sic]  resentment 
and  some  proposals  for  retaliatory  legislation.  Copy- 
righted works  move  across  national  borders  faster  and 
more  easily  than  virtually  any  other  economic  commod- 
ity, and  with  the  techniques  now  in  common  use  this 
movement  has  in  many  cases  become  instantaneous  and 
effortless.  The  need  to  conform  the  duration  of  U.S. 
copyright  to  that  prevaleru  throughout  the  rest  of  the 
world  is  increasingly  pressing  in  order  to  provide 
certainty  and  simplicity  in  international  business 
dealings.  Even  more  important,  a  change  in  the  basis  of 
our  copyright  term  would  place  the  United  States  in  the 
forefront  of  the  ituemational  copyright  community. 
Without  this  change,  the  possibility  of  future  United 
States  adherence  to  the  Berne  Copyright  Union  would 
evaporate,  but  with  it  would  come  a  great  and  immediate 
improvement  in  our  copyright  relations.  All  of  these 
benefits  would  accrue  directly  to  American  and  foreign 
authors  alike.  " 


"      H  R.  Rep.  No.  1476,  94th  Cong.,  2d  Sess.  134-5  (1976). 

dirrVdunooaloc 

July  11.  1995  11 


173 


II.   ANALYSIS  OF  H.R.  989 

Before  one  can  compare  the  provisions  of  H.R.  989  with  existing  law  and  the  EU  Directive  on 
Term,  it  is  first  necessary  to  review  U.S.  term  provisions  and  those  established  by  the  EU  Directive. 

A.         EXISTING  U.S.  LAW 

One  of  the  major  underpiimings  of  the  1 976  Copyright  Act  was  the  adoption  of  a  single  copyright 
term  for  works  that  are  created  and  fixed  in  a  tangible  medium  of  expression  for  the  first  time  on  and 
after  January  I,  1978.  For  most  works,  the  basic  copyright  term  is  life  of  the  author  plus  an  additional 
SO  years  after  the  author's  death.  This  protection  attaches  automatically  from  the  momeiu  of  creatica  In 
the  case  of  a  joint  work  by  two  or  iix>re  authon  who  did  not  work  for  hire,  the  term  lasts  for  SO  years 
after  the  last  surviving  author's  death.  For  works  made  for  hire,  and  for  anonymous  and  pseudonymous 
works  (unless  the  author's  identity  is  revealed  in  Copyright  Office  records),  the  duration  of  copyright  is 
75  years  from  fint  publication  or  100  years  from  creation,  whichever  is  shorter.  " 

The  United  States  has  not  considered  extending  copyright  term  siitce  1976.  In  the  1976  Act,  with 
an  eye  to  possible  fumre  adherence  to  the  Berne  Conventioa  the  United  States  adopted  a  basic  term  of 
life  plus  fifty  years  for  works  created  after  January  1,  1978.  Consequently,  when  the  United  States  joined 
the  Berne  Convention  in  1989,  its  basic  term  was  already  consistent  with  BeriK. 

Before  we  joined  Berne,  there  was  some  discussion  about  the  term  for  anonymous  and 
pseudonymous  works,  and  the  Ad  Hoc  Working  Group  on  U.S.  Adherence  to  the  Berne  Convention 
concluded  that  §302  (c)  was  'incompatible  with  Berne  because  those  such  works  published  more  than  50 


"      17  U.S.C.  §§302-305. 

dirr\<tunaoa.loc 

July  11,  1995  12 


174 


years  after  creation  would  be  protected  for  less  time  than  Berne  requires. "  "  However,  no  changes  were 
made  to  the  copyright  term  provisions  in  the  act  implementing  Berne.  '* 

B.         THE  EU  DIRECTIVE  ON  TERM 

When  some  European  countries  began  to  form  what  is  now  the  European  Union,  "  certain 
member  countries  already  had  longer  terms  than  the  Berne  minimum  or  differeiu  terms  for  ceruin  works. '' 
At  a  hearing  in  Brussels  on  October  24,  1980,  these  coumries  began  to  consider  what  differences  in 
copyright  term  would  mean  in  light  of  a  single  internal  market  "  Some  commentators  have  observed 
that  the  EU  really  did  not  discuss  whether  or  not  the  term  should  be  longer  but  simply  discussed  whether 
the  term  should  be  harmonized.  " 

1.         Purpose. 

On  October  29,  1993,  the  EU  issued  its  Directive  on  Term  requiring  member  states  to  implement 
the  terms  of  the  Directive  by  July  1,  1995.   The  Directive  requires  a  basic  term  of  life  plus  70.   The 


"  Final  Repon  of  the  Ad  Hoc  WorUng  r.mnp  on  U.S.  Adherence  to  the  Berne  Convention.  10  COLUM.- 
VLA  J.  L.  &  ARTS  581  (1986). 

"     Berne  Convention  Implementing  Act,  Pub.  L  No.  100-568,  102  Stat.  2853  (1988). 

"     We  primarily  use  the  term  European  Union  rather  than  the  European  Community. 

"  Germany  had  the  longest  term  life  +  70,  but  Spain's  term  was  life  +  60  and  France  had  a  life  plus  70  term 
for  musical  works.  Other  countries  had  made  extensions  to  compensate  for  war  loss.  Ricketson,  supra  note  5,  at 
336. 

"  Silke  von  Lewinski,  EC  Proposal  for  Directive  Hanpnm-nng  rhe  Term  of  Protection  of  Copyright  and 
Certain  Related  Rights.  23  IIC  785,  note  1. 

"  Id.  at  786.  See  also  Peter  Wienand,  Copyright  Term  Harmonisation  in  the  European  Union.  40  Copyright 
World  (May  1994).  But  see  Proposal  for  a  Council  Directive  HarmnnJTing  the  Term  of  Proteaion  of  Copyright 
and  Cenain  Related  Rights  Commission  (92)  33  final. 

dirr\dunDoaloc 

July  11.  1995  13 


175 


purpose  of  the  EU  Directive  is  to  harmonize  the  terms  of  copyrighted  material  and  related  works  among 
member  countries. 

Although  the  adoption  of  life  plus  70  years  as  the  standard  may  appear  somewhat  surprising  since 
most  nations  of  the  EU  had  a  term  of  life  plus  50  years,  the  EU  gave  a  number  of  reasons  for  moving 
to  a  term  of  life  plus  70  years  including  that  since  the  average  lifespan  in  the  Community  had  risen,  the 
life  plus  50  years  standard  was  no  longer  adequate  to  cover  an  author  and  two  generations  of  his  or  her 
descendants,  "  and  that  harmonization  to  life  plus  50  years  would  have  required  some  rightsholders  to 
lose  existing  rights,  and  the  European  Union  was  philosophically  opposed  to  such  a  result  *' 

2.         Comparison  of  spedflc  EU  provisions  with  U.  S.  law  and  H.R.  989. 

Although  adoption  of  life  plus  70  years  has  received  the  most  attention  in  the  United  States,  other 
provisions  in  the  Direaive  should  be  examined  in  light  of  existing  U.S.  law  and  the  H.R.  989  proposab. 
As  in  U.S.  law,  the  term  for  a  joim  author  is  measured  from  the  death  of  the  last  surviving  author. 

a.  Anonvmoua  worka.  In  the  case  of  anonymous  or  pseudonymous  works,  the 
Directive  establishes  a  term  of  70  years  after  the  work  is  lawfiilly  made  available  to  the  public.  *' 
Current  U.S.  law  establishes  a  term  of  75  years  from  first  publication  or  100  years  firom  creation, 
whichever  expires  first  *'  H.R.  989  would  increase  this  term  to  95  years  from  fint  publication  or  120 
years  from  creation,  whichever  expires  first 


"     Protection  of  two  succeeding  generatioiu  is  the  standard  goal  recognized  in  Berne.  §ss  E^  Directive  on 
Term,  Recital  (5). 

"     EU  Directive  on  Term.  Recital  (S)  &  (10);  P.  Wienand,  Copyright  Tenn  Hanaon\TMi<}^  in  the  European 
Union.  40  Copyright  World  24,  25  (May  1994). 

"      EU  Direaive  on  Term.  art.  1,  para.  3. 

"      17  U.S.C.  5302(c). 

dirr\dunaoa.loc 

Julyll.  I99S  14 


176 


b.  Legal  entity  as  initial  riehtsholder.  Where  a  member  state  law  vests  rights  in 
an  entity  other  than  in  an  individual  author,  the  Directive  provides  a  term  of  70  years  measured  from  the 
year  of  publication.  "  The  compatible  provision  in  U.S.  law  is  the  works  for  hire  one  which  establishes 
the  term  as  75  years  from  first  publication  or  100  years  from  creation,  whichever  expires  first.  "  H.R. 
989  would  increase  this  term  to  95  years  ftom  first  publication,  or  120  years  from  creation,  whichever 
expires  first. 

c.  Audiovisual  works.  E^ovisions  governing  audiovisual  works  are  considerably 
different.  In  the  United  States,  audiovisual  works  are  generally  works  made  for  hire.  This  is  not  true  in 
Europe.  Under  the  Directive,  the  term  is  determined  by  the  lives  of  four  individuals.  *'  The  Directive 
states  the  term  shall  expire  70  years  after  the  death  of  the  last  of  the  following  persons  to  survive  "the 
principal  director,  the  author  of  the  screenplay,  the  author  of  the  dialogue,  and  the  composer  of  music 
specifically  created  for  use  in  the  cinematographic  on  audiovisual  work."  **  The  Directive's  term  for 
audiovisual  works  is  at  least  equivalent  to  and  may  be  longer  than  existing  law  or  the  proposal  in  H.R. 
989.  *' 

d.  Rights  protected  as  neiriibopfg  fr  rplated  rights.  The  Directive  also  specifies 
terms  for  neighboring  rights.    The  Directive  gives  producers  of  sound  recordings  50  years  from  first 


"  EU  Directive  on  Term,  ait.  1 ,  para.  4.  The  laws  of  most  member  states  of  the  EU  do  not  recognize  the 
work  for  hire  doctrine;  rights  generally  vest  in  individual  authon.  However,  it  does  exist  in  certain  countries  and 
for  certain  works,  e.^.,  collective  works,  and  paragraph  4  coven  those  exceptions. 

**      17  U.S.C.  1302(c). 

"     EU  Directive  on  Term,  ait  2,  para.  1 . 

**     Id.  EU  Directive  on  Term,  an.  2,  para.  2. 

"  A  number  of  the  comments  received  in  RM  93-8  confuse  the  term  for  motion  pictures  which  is  spelled 
out  in  an.  2  of  the  EU  Directive  on  Term.  The  provision  in  an  1 ,  para.  4  for  collective  works  or  where  a  legal 
person  is  designated  as  the  rightsholder. 

dirr\cturaDoa.loc 

July  11.  1995  15 


177 


publication  or  first  communication  to  the  public,  whichever  is  first.  "  In  the  United  States,  where  sound 
recordings  are  protected  generally  as  works  made  for  hire,  they  are  under  copyright  for  at  least  75  years. 
The  Directive  gives  broadcasting  organizations  protection  for  50  years  from  the  date  of  first  transmission. " 

Finally,  the  Directive  generally  gives  performers  protection  for  50  years  from  the  date  of  the 
performance.  '" 

e.  Protection  of  prevlouslY  unpubUshed  work.  Article  4  of  the  Directive  provides 

a  special  term  of  protection  to  anyone  who  publishes  a  previously  unpublished  work  whose  copyright  term 
has  otherwise  expired.  "  The  term  of  protection  is  25  years  from  the  time  when  the  work  is  first 
lawfully  published  or  lawfully  communicated  to  the  public.  The  intent  is  to  induce  for  early  publicatioa  " 

The  only  corollary  in  U.S.  law  is  §303,  which  provides  that  where  a  work  is  created  but  not  published 
before  January  1,  1978,  and  is  published  by  December  31,  2002,  the  copyright  term  is  extended  for  25 
years.  H.R.  989  extends  the  term  for  these  works  by  ten  years.  If  such  works  are  published  by  the  end 
of  2002,  there  is  another  35  years  of  protectioa 

3.  Effect  of  EU  Directive  on  other  countries. 

The  most  prominent  change  ordered  by  the  Directive  is  the  requirement  that  all  member  states 
recognize  a  general  copyright  duration  standard  of  life  of  the  author  plus  70  years  and  that,  with  respect 
to  countries  outside  of  the  EU,  each  state  is  to  apply  the  rule  of  the  shorter  term:   Foreign  countries 


*•  M-,  art.  3,  panL  2. 
"  li,  art  3.  pan.  4. 
'•     M-,  art  3,  part.  I. 


"     An.  I,  para.  I  seu  the  first  term,  life  of  the  author  and  70  yean  after  his  or  her  death,  tunning  irrespective 
of  the  date  a  work  is  lawfully  made  public. 

"     Lewinski.  suora  note  36  at  801.  n.  65. 

dirr\duraooD.kx 

July  II.  1993  16 


178 


having  a  shoner  term  will  be  limited  to  the  term  established  by  the  country  of  origin.  "  U.S. 
rightsholders  reaction  to  this  was  immediate — their  position  was  that  the  U.S.  had  to  raise  its  term  of 
protection  to  avoid  imposition  of  the  rule  of  the  shorter  term. 

The  Directive  mandates  that  these  changes  should  be  made  by  July  1,  1995.  Although  that  goal 
has  not  been  met,  the  United  Kingdom  has  already  proposed  amending  its  law  to  the  longer  term  and 
other  EU  members  are  expected  to  comply.  In  addition,  countries  that  belong  to  the  European  Economic 
Area  must  also  adopt  the  Directive. 

There  are  a  number  of  countries  that  are  seeking  eventual  membership  in  the  European  Union 
or  the  European  Economic  Area.  Such  couiuhes  iiKlude  Poland,  Hungary,  Turkey  and  the  Czech 
Republic.  In  preparation  for  this,  it  is  likely  that  these  coumries  will  amend  their  copyright  laws  to  reflect 
the  requirements  of  the  Directive.  There  is  also  some  indication  that  other  coumries  that  are  in  the 
process  of  adopting  new  copyright  laws  will  adopt  a  life  plus  70  standard.  For  example,  the  new 
Slovenian  copyright  law  provides  for  a  term  of  life  plus  70. 

With  respect  to  the  Berne  Convetuion,  it  is  unclear  whether  life  plus  70  will  be  adopted  in  the 
near  future.  ^  However,  the  likelihood  increases  as  more  countries  move  to  a  life  plus  70  term. 

B.         SECTION  BY  SECTION  ANALYSIS  OF  H.  R.  989 

The  approach  taken  by  H.R.  989  is  basically  to  amend  the  existing  copyright  provisions  on  term 
by  adding  20  years  to  the  date  in  the  provisioa  The  bill  does  not  propose  any  changes  to  ownership  of 
rights  in  the  copyright  of  the  extended  term. 


"     EU  Directive  on  Term,  art  7. 


"  Life  plus  70  was  on  the  original  agenda  of  the  exercise  begun  in  1991  to  adopt  a  Protocol  to  the  Berne 
Convention.  However,  at  the  meeting  of  the  Governing  Bodies  in  September,  1992  there  was  agreement  to  reduce 
the  scope  of  the  possible  protocol  to  10  critical  issues.  Life  plus  70  was  removed  from  the  agenda.  A  number  of 
countries,  not  including  the  United  States,  have  suggested  that  this  topic  be  put  back  on  the  agenda. 

dirr\dufation  loc 

July  11.  1995  17 


179 


1.  Duration  of  works  created  on  or  after  January  i ,  |<yT» 

Under  H.R.  989,  the  basic  copyright  term  would  be  extended  from  life  of  the  author  plus  50  years 
to  life  of  the  author  plus  70  years.  The  extended  term  would  vest  in  either  the  original  author,  or,  if  rights 
have  been  transferred,  in  the  transferee.  All  transfers  on  works  created  and  fixed  after  January  1,  1978, 
are  subject  to  termination  generally  after  35  years;  "  therefore,  the  extended  term  could  be  reclaimed 
by  the  author  or  his  or  her  heirs.  " 

The  term  for  works  made  for  hire,  anonymous  and  pseudonymous  works  would  go  from  a  term 
of  75  years  from  the  year  of  first  publication  or  100  years  from  the  year  of  creation,  whichever  expires 
first,  to  95  years  from  the  year  of  first  publication  or  120  years  from  creation,  whichever  expires  first 

2.  Renewal  term. 

For  works  which  had  secured  federal  copyright  protection  prior  to  January  1,  1978,  the  1976 
Copyright  Act  retained  the  old  system  of  computing  the  term  with  one  major  change:  the  length  of  the 
second  renewal  term  was  increased  to  47  years.  Under  pre- 1978  law,  copyright  was  secured  either  on 
the  date  a  work  was  published  or  on  the  date  of  registration  if  the  work  was  unpublished.  In  either  case, 
the  copyright  lasted  for  a  first  term  of  28  years  from  the  date  it  was  secured.  The  copyright  was  eligible 
for  renewal  during  the  28th  year  of  the  first  term.  If  renewed,  the  copyright  was  extended  for  a  second 
term  of  28  years.  If  not  renewed,  the  copyright  expired  at  the  end  of  the  first  28-year  term.  The  addition 
of  19  yean  to  die  second  renewal  term  by  the  1976  Copyright  \a  was  subject  to  an  author's  right  of 
termination.  " 


"     17  U.S.C.  §203.  A  work  made  for  hire  does  not  have  a  termination  right  under  section  203. 

'*     Currently,  no  transfers  conceniing  works  created  and  fixed  on  or  after  January  I,  1978,  have  aged  the 
requisite  35  years  to  be  subject  to  termination. 

"      17  use  1304(c). 

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July  II.  I99S  18 


180 


In  June,  1992,  Congress  amended  the  law  to  make  copyright  renewal  registration  optional.  "' 
As  a  result,  works  securing  federal  copyright  protection  between  January  1,  1964,  and  December  31, 
1977,  are  automatically  renewed  on  the  last  day  of  the  28th  year  unless  the  owner  of  the  renewal  right 
registered  a  renewal  claim  with  the  Copyright  Office  earlier  in  that  year. 

Under  H.R.  989,  the  second  renewal  term  would  consist  of  67  years  in  place  of  the  current  47 
years.  In  instances  where  the  renewal  right  has  been  transferred,  the  20  year  extension  under  H.R.  989 
would  pass  to  the  transferee.  In  instances  where  the  time  period  for  exercising  termination  under  section 
304  has  already  lapsed,  there  would  be  no  additional  opportunity  to  terminate  the  transfer. 

3.  Sound  recorriiny;^  fiW  before  FehTary  '^1  '**^'^ 

For  pre-February  15,  1972,  sound  recordings  under  section  §30 1(c),  the  federal  copyright  law 
would  preempt  state  law  on  February  15,  2067,  instead  of  February  15,  2047. 

4.  Works  created  but  not  published  or  copyrighted  before  January  1.  1978. 

There  is  a  special  duration  provision  for  works  in  existence  but  not  published  or  copyrighted  on 
January  1,  1978.  ''  These  works  were  automatically  given  federal  copyright  protection  beginning  on 
January  1,  1978.  The  typical  standards  of  life  plus  50  years  or  75-100  year  terms  generally  apply  to  these 
works.  However,  all  works  in  this  category  are  guaranteed  at  least  25  years  of  federal  copyright 
protection.  The  existing  law  specifies  that  in  no  case  will  copyright  in  a  work  of  this  type  expire  before 
December  31,  2002.  If  the  work  is  published  before  that  date,  the  term  will  extend  another  25  years 
through  the  eixl  of  2027. 


"      Public  Uw  102-307,  106  Stai.  264  (1992). 

"      17  U.S.C.  §303. 

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181 


a.  H.R.  989.  Under  H.R.  989,  the  minimum  term  of  protection  guaranteed  an 
unpublished  work  will  be  extended  10  years  to  December  3 1 ,  2012.  If  the  work  is  published  by  that  date, 
the  term  is  extended  another  35  years  to  December  31,  2047. 

b.  Cnmmmt  pg  proposed  extension  of  section  303.  While  the  Copyright  Office 
generally  supports  passage  of  H.R.  989,  it  does  not  endorse  the  proposed  extension  of  section  303.  For 
unpublished  works  created  before  January  I,  1978,  section  303  of  the  copyright  law  already  provides  a 
minimum  copyright  term  running  through  December  31,  2002.  Essentially,  the  works  covered  by  this 
provision  are  works  by  authors  who  died  before  1952  which  remain  unpublished  through  the  year  2002. 

In  his  thorough  analysis  of  copyright  term,  Sam  Ricketson  discussed  the  considerations  involved 

with  unpublished  works  and  questioned  whether  they  should  be  subject  to  temporal  limits  or  be  protected 

indefinitely  until  publication  takes  place.   He  mentioned  two  possibilities:  to  protect  for  the  same  term 

as  published  works  and  add  no  additional  term  if  disclosure  occurs  subsequently  or  to  allow  protection 

indefinitely  and  then  to  grant  a  fiirther  fixed  term  once  the  work  is  disclosed.  Ricketson  asserted  that  the 

disadvanuges  to  the  public  of  the  second  approach  may  be  cured  if  post-publication  protection  is 

relatively  brief.  "  He  also  noted 

A  more  substamive  objection,  however,  is  that  where 
ownership  of  the  copyright  and  ownership  of  the 
unpublished  work  itself  have  become  separated,  this  can 
place  severe  restraints  upon  later  users,  in  particular 
those  engaged  in  research  and  scholarship.  " 

We  believe  that  the  unpublished  works  covered  by  section  303  have  social,  educational  and 

historical  significance.  In  the  17  years  since  the  effective  date  of  the  1976  copyright  revision  act,  they 


"     Sam  Ricketson,  The  Copyright  Term.  23  nC  776  (1992). 

"      Id.  at  776. 

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182 


have  not  been  published.  Extending  the  term  will  not  benefit  the  copyright  owners  of  such  works;  there 
are,  however,  broad  public  benefits  to  be  gained  when  these  works  enter  the  public  domain.  Many 
institutions,  including  the  Library  of  Congress,  have  photographs,  letters  and  manuscripts  that  can  and 
will  be  made  available  to  the  public.  For  example,  the  Library  of  Congress  has  a  unified  collection  on 
the  American  composer  Edward  A.  Mac  Dowell  (1861-1908).  The  rights  in  all  of  the  material  in  that 
collection  except  his  correspondence,  can  be  cleared,  and  there  is  no  way  to  locate  the  heirs  of  those 
leners  sent  to  Mac  Dowell.  This  collection  is  being  prepared  for  distribution  to  the  public  in  2003; 
nothing  would  be  gained  by  restricting  such  dissemination  until  the  year  2013. 

m.  ARGUMENTS  FOR  AND  AGAINST  TERM  EXTENSION 

Although  there  was  no  pending  legislation,  the  Copyright  Office  published  an  announcement  in 
the  Federal  Register  on  July  30,  1993.  that  it  would  be  conducting  a  study  on  copyright  duration  and  also 
announced  a  public  hearing  to  be  held  on  September  29,  1993.  In  addition  to  publication  in  the  Federal 
Register,  the  Copyright  Office  contacted  user  groups  about  the  hearing.  Perhaps  because  legislation  did 
not  appear  on  the  horizon,  only  representatives  who  strongly  supported  increasing  the  term  of  protection 
appeared.  They  represented  lyricists  and  composers,  music  publishers,  and  the  motion  picture  industry.  " 
The  Copyright  Office  extended  its  comment  period  to  ensure  that  all  views  would  be  heard.  Later  other 


"  The  National  Music  Publishers  Association  (NMPA)  (Comments  1  and  99);  Music  Publishers  Association 
(MPA)  (Comment  2);  Intemational  Confederation  of  Music  Publishers  (ICMPXComment  4);  Songwriters  Guild  of 
America  (SGA)  (Comment  6);  David  Nimmer  (Comment  7);  Wade  Williams  Productions  (Comment  23);  Nashville 
Songwriters  Association  International  (NSAI)  (Comment  24)  Joint  Comments  of  the  Coalition  of  Creators  and 
Copyright  Owners  (CCCOXComments  3  and  98).  But  s^  Comment  15  filed  by  the  Recording  Industry  Association 
of  America  (RIAA).  The  RIAA  is  primarily  interested  im  removing  the  "distinction  between  author's  rights  and 
so  called  neighboring  ngbts...'  and  asserted  that  diere  were  far  more  pressing  issues  than  duration.   Id.  at  3-4 

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July  11,  199$  21 


183 


views  were  presented  primarily  by  users  of  public  domain  motion  picnires  and  law  professors.  "  All 
of  these  comments  are  considered  in  the  discussion  below  of  arguments  for  and  against  extension  of 
Copyright  term. 

Staff  shortages  kept  the  Office  from  completing  this  smdy,  but  we  kept  all  of  the  materials  and 
have  made  them  available  to  the  public  on  request.  Moreover,  we  will  be  glad  to  provide  a  copy  of  the 
transcript  of  the  hearing  and  comments  should  the  subcomminee  want  them  for  the  record. 

Having  reviewed  both  sides  of  the  argument  presented  to  the  Copyright  Office  in  1993  and  those 
made  before  this  subcomminee  at  the  June  1  hearing  on  H.R.  989  in  California,  one  can  only  conclude 
that  the  issue  of  term  extension  is  more  complicated  than  the  sometimes  oversimplified  or  overblown 
argtiments  made  on  both  sides  would  lead  one  to  believe.  Instead  of  an  exhaustive  retelling  of  those 
arguments,  the  Office  has  prepared  a  chan  identifying  most,  if  not  all,  of  them.  ^  We  choose  here  to 
review  the  major  arguments  on  term  extension  in  light  of  the  1976  considerations  that  are  still  relevant 
and  to  evaluate  other  considerations. 


"  One  individual  educator  opposed  term  extension  (Comment  5 1 ).  Another  commentator  opposed  extension 
because  he  felt  it  would  cause  great  harm  to  the  Gutenberg  Project,  which  makes  public  domain  works  available 
internationally  via  electronic  media.  (Comment  83).  A  coalition  group  of  law  professors  also  opposed  extension. 
(Commem  19).  Sgs  jIjs  Comment  136,  Society  for  Cinema  Studies  .  Another  individual  commentator  deplored 
not  being  able  to  put  deteriorating  materials  on  the  Internet  to  promote  public  access.  (Commeu  26).  Some 
individual  authors,  producers,  scriptwriters  and  filmmakers  also  opposed  extension.  §^  e.g.,  Comments  7S,  77, 
86,  128,  130  and  160.  [All  of  the  other  commentaton  who  opposed  extension  were  either  those  who  want  to  use 
public  domain  motion  pictures  or  warn  to  have  access  to  these  films]. 

**     This  chart  is  attached  to  die  statement  as  an  Appendix. 

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July  11,  199$  22 


184 


A.         REVIEW  OF  ARGUMENTS  BASED  ON  CONSmERATIONS  WEIGHED  BY  TfflS 
COMMITTEE  IN  1976  " 


Four  of  the  seven  considerations  that  led  the  Judiciary  Committee  to  conclude  that  copyright  terms 
should  be  extended  m  1976  are  still  relevant  today.  Each  of  them  is  discussed  below  with  a  brief 
summary  and  evaluation  of  the  arguments  on  that  particular  consideratioa 

I.  Public  Benefit  and  limited  Times. 

a.  Arguments.  Many  of  the  opponents  arguing  against  term  extension  have  raised 

the  legal  problems  associated  with  removing  property  from  the  public  domain.  **  H.R.  989,  however, 
does  not  propose  applying  term  extension  retroactively  to  restore  copyrights  in  works  already  in  the 
public  domaia  "  Opponents  also  argue  that  term  extension  provides  the  public  with  no  benefits  and 
imposes  substantial  costs,  "  and  freezes  the  public  domain  for  20  years.  They  assert  that  diminishing 
the  public  domain  stifles  creativity  especially  in  the  production  of  derivative  works  and  they  cite  examples 
of  contemporary  works  based  on  materials  in  the  public  domain.  "   Some  opponents  also  assert  that 


"     S^  text  at  pages  9-1 1  supra  for  the  complete  text  of  these  provisions. 

**  Sm,  e.^.  Commenis  127,  123,  123,  121,  122  and  120.  These  and  others  reveal  concerns  about  restoration 
of  films  under  the  North  American  Free  Trade  Agreement  or  any  other  law. 

"  Some  auibon'  groups,  however,  will  likely  argue  that  this  should  be  done,  citing  the  recent  restoration  of 
foreign  copyrights  under  the  Uruguay  Round  Agreements  Act  or  the  North  American  Free  Trade  Agreement  Since 
H.R.  989  does  not  prt>pose  to  restore  works  in  the  public  domain,  this  staiemem  does  not  address  the  host  of 
complex  policy  issues  raised  by  restoration  of  U.S.  copyrights. 

"     Sm  Comments  8S  and  97  at  8-9. 

**  Sm  Comment  19  'Comment  of  Law  Professors  on  Copyright  Office  Term  of  Protection  Snidy '  [hereinafter 
Comment  19  law  professon].  Comment  1 1  (Fairness  in  Copyright  Coalition)  at  2  'We  are  concerned  with  NEW 
authors,  NEW  creativity,  and  the  promotion  of  learning.  New  authors  need  a  rich  and  diverse  public  domain  to 
create  and  educate.'   Id.   Seg  alss  Comment  19.  at  12;  Comment  147,  at  2;  and  Comment  148,  a  I. 

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July  11.  1995  23 


185 


term  extension  would  violate  the  "limited  times"  provision  of  the  copyright  clause  of  the  constitution 
which  authorizes  Congress  to  give  rights  for  "limited  times. "  " 

Most  of  those  who  presented  arguments  to  the  Copyright  Office  in  1993  against  the  copyright 
term  extension  were  small  movie/film  companies  and  coalitions  who  were  concerned  that  adding  twenty 
years  to  the  copyrighted  life  of  a  work  would  deny  access  to  the  general  public  and  constrict  the  creative 
efforts  of  those  who  use  public  domain  materials  in  the  creation  of  new  works.  They  also  argued  that 
term  extension  would  be  detrimental  to  the  preservation  of  twemieth  century  culture.  They  urged  that 
extension  will  make  a  large  portion  of  our  motion  picture  heritage  inaccessible.  '' 

Proponents  argued  that  extension  of  the  copyright  term  will  not  affect  the  creation  of  new  works 

and  that  there  is  no  evidence  that  works  created  from  public  domain  materials  are  any  cheaper.  They  also 

argued  such  works  may  be  of  lesser  quality.   This  argumeiu  was  made  most  forcefully  by  Irwin  Karp 

during  the  revision  that  led  to  the  1976  Act: 

In  fact,  the  advantage  of  the  "public  domain'  as  a  device  for  making 
works  more  available  to  the  public  is  highly  overrated;  especially  if 
availability  is  equated  with  'low  cost'  to  the  public  In  contrast  with  the 
fact  that  the  prices  charged  the  public  do  not  necessarily  come  down,  or 
the  supply  of  the  work  increase,  when  copyright  terminates — the  paper- 
back book  is  evidence  that  copyright  protection  is  not  incompatible  with 
mass  circulation  at  low  cost  to  the  public  ^ 


See  Comment  19,  at  10. 


'  SSfi>  SC-t  Comment  17  (John  Beltoo,  Member  Natioaal  Film  Preservation  Board).  Another  argument  this 
group  made  wu  that  films  in  tiie  pubic  domain  are  more  likely  to  be  preserved  aod  presented  to  the  public  than 
copyrighted  works.  They  assert  this  is  so  because  many  holden  of  such  films  control  the  only  available  copy,  which 
is  often  lost  or  destroyed,  and  almost  never  made  available  to  the  public.  Extending  the  term  or  decreasing  it  will, 
of  course,  have  nothing  to  do  with  whether  the  holder  of  the  only  available  copy  releases  it.  Sss  g.g.,  Comments 
32,  29  and  28  deploring  the  fact  that  Mary  Pickford  wanted  to  destroy  the  negative  copies  of  all  of  her  early  films. 
The  Fairness  in  Copyright  Coalition  asserts  that  public  domain  distiibuton  are  waiting  to  release  many  silent  movies 
and  will  not  be  able  to  do  so  for  another  20  years  if  term  is  extended    Comment  1 1,  at  4-5. 

^     Copyright  Law  Revision,  part  2  at  316-317. 

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July  11.  199S  24 


186 


Represenutives  of  songwriters  stated  that  there  is  no  savings  for  consumers  where  their  works 
pass  into  the  public  domain  because  there  is  no  reduction  in  price  and  that,  therefore,  only  the  creator 
loses.  '  An  independent  distributor  of  motion  pictures  and  television  shows  urged  that  it  was  not  fair 
to  penalize  the  creator  and  that  "There  is  an  effort  by  'public  domainers'  that  pirate  motion  picmres 
world-wide  to  obstruct  the  efforts  to  restore  copyrights  so  they  [can]  use  freely  motion  pictures  without 
licenses  from  the  owners."  '* 

b.  Evaluation.  In  evaluating  any  change  to  the  copyright  law,  Congress  must  go 
back  to  the  constitutional  mandate.  With  respect  to  extending  the  copyright  term  two  provisions  must  be 
considered:  that  copyright  laws  exist  for  the  benefit  of  the  public,  and  that  copyright  shall  be  for  "limited 
times." 

(i)  Public  benefit.  In  the  United  States,  economic  and  social  effects  of 
protection  must  be  considered.  The  key  is  to  promote  creativity  on  the  one  hand,  and  to  ensure  maximum 
public  access  to  this  creativity  on  the  other.  One  question  raised  is  whether  shorter  terms  inhibit 
creativity  and  the  production  of  new  works.  The  Copyright  Office  does  not  believe  a  case  has  been  made 
that  extension  of  the  copyright  term  would  diminish  the  creation  of  new  works.  To  make  such  a  case,  we 
suggest  comparing  the  experiences  in  countries  with  a  shorter  term  to  those  with  a  longer  term. 

Strong  copyright  laws  foster  rather  than  discourage  the  creation  and  broad  dissemination  of 
culniral  works.  Panicularly  since  copyright,  unlike  patent,  only  protects  expression  not  ideas  or  facts, 
and  a  new  author  is  free  to  use  his  or  her  own  expression  to  create  a  different  work  out  of  the  same 
public  domain  idea  or  facts.  It  is  only  when  the  new  author  appropriates  the  expression  of  the  earlier 
author  that  considerations  of  copyright  arise.    Moreover,  it  has  not  been  shown  that  the  creation  of 


•.. .   ''     See,  e.g..  Comment  6  at  p.  3.  (George  David  Weiss,  President,  The  Songwriters  Guild  of  America). 
'*     Sm  Comment  23  (Wade  Williams  Productions). 


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July  n,  1995  25 


187 


derivative  works  decreased  following  term  extension  in  1976.  In  looking  at  the  current  entertainment 
industry,  one  sees  a  large  number  of  remakes  regardless  of  whether  the  work  is  based  on  a  public  domain 
work  such  as  Linle  Women  or  a  licensed  version  of  a  more  recent  title  such  as  the  Broadway  show,  "How 
to  Succeed  in  Business  Without  Really  Trying."  " 

Mainuining  and  enhancing  the  health  of  our  copyright  industries  should  be  viewed  as  being  in 
the  public  interest.  Historically,  Congress  on  numerous  occasions  has  rejected  the  notion  that  thrusting 
works  into  the  public  domain  premanirely  is  a  positive  thing,  and  the  law  has  been  amended  many  times 
to  reduce  this  possibility.  The  1992  amendment  providing  for  automatic  vesting  of  copyright  renewal  is 
a  recent  example.  The  Copyright  Office  believes  the  same  principle  applies  to  this  term  extension. 

There  are  some  costs  to  term  extension,  however,  and  they  must  be  weighed  against  the  benefits. 
While  it  does  appear  likely  that  as  a  result  of  term  extension,  sonoe  items  may  become  more  expensive, 
the  impact  on  individual  consumers  should  be  minimal.  ''*  When  it  comes  to  choosing  whether  to  protect 
authors  or  slightly  decrease  costs  associated  with  making  materials  available,  the  balance  should  be  in 
favor  of  authors.  " 

(ii)  Tjmitfd  times.  Unlike  other  countries  which  have  no  similar 
requirement,  the  United  States  Constitution  provides  that  copyright  shall  be  for  "limited  times." 
Determining  what  the  appropriate  term  of  copyright  should  be  and  what  "limited  times"  means  is 
extremely  difficult  There  is  no  guidance — only  the  history  of  how  Congress  interpreted  that  mandate. 
Nor  is  the  criteria  to  be  used  in  deciding  the  term  clear. 


^'     Interestingly  enough  although  opponents  assert  that  'It's  a  Wonderful  Life'  became  popular  because  it  went 
into  the  public  donuun.  'Miracle  on  34th  Street'  is  equally  popular  and  it  is  aoi  in  the  public  domain. 

'     Companies  wbich  are  dedicated  to  exploiting  public  domain  material  are  affected  by  term  extension.   No 
matter  what  the  term  is,  however,  some  works  will  enter  the  public  domain  each  year. 

^     S^  Si.  Barbara  A.  Ringer,  The  Demonologv  of  Copyright  Second  of  the  R.R.  Bowker  Memorial 
Lecnires  New  Series  (New  York  1974). 

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July  II.  1995  26 


188 


The  history  of  the  United  States  and  other  copyright  laws  show  that  generally  the  term  of 
protection  has  steadily  increased.  A  fundamental  assumption  seems  to  be  that  the  author  and  at  least  his 
immediate  family  should  have  the  ability  to  earn  some  return  on  his  work.  Thus,  even  if  the  author  ■ 
himself  receives  little  remuneration  during  his  lifetime,  his  spouse  and  children  may  receive  some  benefit 
later  if  the  work  has  a  delayed  success,  which  often  is  the  case  with  serious  music.  Whatever  the  term, 
one  must  also  consider  that  the  author  frequently  assigns  his  right  to  a  publisher,  film  producer  or  other 
disseminator  of  the  work.  In  such  cases,  the  copyright  in  the  work  represents  a  protection  for  the 
investment  that  is  undertaken  in  the  publication  or  production  of  the  work.  Here  the  term  granted  must 
be  sufficient  to  allow  the  investor  time  not  only  to  recover  but  also  to  earn  a  reasonable  renim  on  his 
investment.  This  is  very  difficult  to  estimate;  different  types  of  works  and  individual  works  within 
different  genres  may  have  varying  levels  of  longevity  and  may  reach  a  poiitt  of  profitability  at  different 
times.  Another  part  of  the  equation  is  that  there  is  a  risk  involved  in  publishing  or  producing  work; 
successful  ventures  subsidize  marginal  works.  Unfortunately,  there  are  few  relevant  statistics  to  show  on 
the  average  what  a  minimum  term  would  be  to  make  sure  that  a  publisher  or  producer  received  a 
reasonable  term  on  his  or  her  investment  Although  protection  of  the  investmem  may  seem  far  removed 
from  protecting  the  author,  in  most  cases  authors'  rewards  are  tied  to  the  interests  of  those  who  exploit 
their  works." 

In  earlier  debates  of  the  1909  Aa  aiKl  1976  Act,  Congress  appeared  to  conclude  that  the  copyright 
should  benefit  at  least  two  generations.  The  legislative  history  refers  to  an  author's  family  without 
specifically  stating  what  constitutes  a  family.  Samuel  Clemens,  an  ardem  proponent  of  a  longer  term, 
stated  that  he  did  not  care  about  his  grandchildren  since  they  could  take  care  of  themselves,  but  that  the 


''     S^  generally  Ricketson,  supra  note  at  320-1 . 

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189 


term  should  take  care  of  his  daughters.  "  On  the  other  hand,  the  Berne  Convention  seems  to  have 
accepted  the  premise  that  a  work  should  extend  to  the  author  and  two  generations,  thus,  to  the 
grandchildren.  The  EU  Directive  on  Term  also  mentions  the  author  and  two  generations  of  heirs. 

In  1978  the  United  States  adopted  a  term  of  the  life  of  the  author  plus  50  years.  This  eliminated 
the  possibility  that  an  author  might  outlive  his  work.  However,  for  the  pre- 1978  copyrights,  it  added  an 
extra  19  years;  thus,  making  75  years  the  longest  possible  term.  Also,  for  these  works,  to  obtain  the  full 
term,  a  renewal  claim  had  to  be  made  in  the  28th  year  of  the  first  term. 

In  looking  at  the  criteria  used  in  the  past,  since  some  authors  of  pre- 1978  copyrights  or  their 
widows  or  widowers  are  outliving  the  cunent  term,  the  20  year  extension  would  seem  justified.  With 
respect  to  works  created  on  or  after  January  1,  1978,  a  longer  term  may  be  necessary  to  safieguard  even 
one  succeeding  generatioa 

However,  life  plus  70  is  an  extremely  long  period  of  time,  as  is  a  term  of  95  years  from 
publication  or  120  years  from  creatioa  To  reflect  the  balance  intended  in  the  Constimtion,  Congress 
must  make  sure  that  works  that  are  not  being  made  available  to  the  American  public  are  still  accessible. 
This  is  especially  critical  to  smdents,  scholars  and  researchers.  Thus,  if  the  term  is  lengthened,  the 
concerns  expressed  from  library  associations  in  their  July  11,  1995  letter  to  Mr.  Moorhead  must  be 
addressed.  '°  One  way  to  address  some  of  these  concerns  is  to  create  a  limited  exemption  during  the 
extra  20  years  for  nonprofit  educational  instimtions  and  libraries  who  provide  materials  that  are  directly 
related  to  nonprofit  instructional  activities. 


"'  S«  note  supra  al  Proposal  to  Amend  and  Consolidate  the  Acts  Respecting  Copyright.  1906:  Hearings  on 
S.  6330  and  H.R.  19853  Before  the  Joint  Committees  on  Patents,  59th  Cong.,  1st  Sess.  1 16  (1906)  (statement  of 
Samual  L.  Clemens,  author). 

"  See  Letter  from  Robert  Oakley,  Washington  Affairs  Representative,  American  Association  of  Law  Libraries; 
Carol  Henderson,  Executive  Director,  Washington  Office,  American  Library  Associations;  David  Bender,  Executive 
Director,  Special  Library  Association;  and  Carla  Funil,  Executive  Director,  Medical  Library  Association;  to  the 
Honorable  Carlos  Moorhead,  Chaiman,  Intellecnial  Property  Subcommine.  House  Judiciary  Comminee  (July  1 1 , 
1995). 

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July  11.  1995  28 


190 


Few  would  argue  that  a  perpetual  copyright  term  under  federal  law  would  be  constitutional. 
Despite  a  history  of  over  two  hundred  years  of  copyright  jurisprudence,  judicial  authority  on  the  meaning 
of  the  limited  times"  provision  is  scant.  "  In  1976  Congress  believed  that  life  plus  50  years  did  not 
violate  the  Constitutioa  Consequently,  the  Copyright  Office  believes  that  H.R.  989  which  proposes 
adding  an  additional  twenty  years  is  within  reasonable  bounds.  " 

2.  Increase  in  the  CoromTriaf  l.jfe  of  Copyrighted  Property. 

a.  Arguments.  Opponents  assert  that  most  works  already  enjoy  a  term  much  longer 
than  their  commercial  value  and  that  adding  an  additional  20  year  term  will  simply  make  it  more  difficult 
to  create  new  works  based  on  protected  materials.  "  They  argue  that  copyright  is  designed  to  protect 
living  authors  and  to  ensure  new  works  are  created.  Users  of  motion  pictures  strongly  urge  that  currem 
copyright  owners  do  nothing  in  return  for  this  extra  copyright  protection,  that  they  feel  no  obligation  to 
preserve  the  work,  make  it  available  to  the  public,  or  even  to  grant  permission  for  archival  showings,  and 


"  Perhaps  the  best  judicial  authority  on  the  'limited  times'  provision.  United  Christian  Scientists  v.  First 
Church  of  Christ.  829  F.2d  1 152  (DC.  Cir.  1987),  is  subjea  to  a  number  of  different  interpretations.  In  that  case. 
Congress  had  enacted  a  private  bill  restoring  and  extending  copyright  in  the  writings  of  Mary  Baker  Eddy,  founder 
of  the  Christian  Science  Church.  Copyright  in  those  writings  was  vested  in  a  particular  faaion  of  that  church.  The 
new  copyrights  established  a  duration  of  approumately  150  yean.  In  spite  of  the  extraordinary  duration,  the  D.C. 
Circuit  Coun  of  Appeals  did  not  invalidate  the  law  on  the  basis  of  the  'limited  timet'  provision  of  the  Copyright 
Clause,  although  the  dictum  did  criticize  the  length  of  the  term.  Instead,  the  Court  declared  the  stanite 
unconstimtional  on  the  basis  of  principles  of  separation  of  church  and  state  in  the  establishment  clause  of  the  First 
Amendment. 

"  Another  constitutional  objection  which  may  be  raised  is  the  failure  of  the  public  to  secure  a  'benefit'  for 
the  extended  copyright  in  works  already  in  existence.  This  argumem  essentially  seeks  to  reduce  issue*  of 
constimtionality  to  an  inquiry  over  identification  of  specific  public  benefits  for  each  individual  copyrighted  work. 
The  copyright  clause  has  never  been  interpreted  in  such  a  fashion.  In  appears  reasonable  to  conclude  that  a  longer 
revenue  stream  for  copyrighted  material  is  to  the  public  good  because  funds  become  available  for  the  creation  of 
new  works.  Some  may  disagree  with  the  length  of  the  copyright  term  chosen  by  Congress,  but  the  Constimtion  gives 
Congress  the  right  to  decide  this  issue.  When  the  1976  Copyright  Act  was  enacted.  Congress  specifically  embraced 
longer  terms  for  works  already  in  existence.  This  decision  was  never  challenged  as  unconstimtional.  For  these 
reasons,  the  Copyright  Office  believes  consideration  of  term  extension  is  well  within  die  Constinitional  powers  of 
Congress. 

"     Comment  19,  at  4-6  (law  professon);  Comment  97,  at  9-1 1  (CFPPA). 

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July  11.  1995  29 


191 


that,  therefore,  there  can  be  no  public  benefit  without  public  access.  "  Proponents  assen  that 
technological  developments  since  1976  have  greatly  increased  the  life  of  copyright  property.  They  also 
note  that  some  works  may,  through  new  uses,  become  hits  late  in  life.  " 

b.  Evaluation.  There  is  a  great  deal  of  anecdotal  evidence  on  both  sides.  Obviously 
some  works  have  a  much  longer  commercial  life  than  others.  Some  works  have  a  very  short  commercial 
life,  e.g.,  novelty  items;  others,  such  as  computer  programs,  will  have  a  relatively  short  life,  while  othen, 
such  as  music,  may  have  a  very  long  commercial  life.  Moreover,  technological  developments  clearly  have 
extended  the  commercial  life  of  copyrighted  works.  Examples  include  videocassettes,  which  have  given 
new  life  to  movies  and  television  series,  expanded  cable  television  and  satellite  delivery,  which  promise 
up  to  500  channels  thereby  creating  a  demand  for  content,  the  advent  of  multimedia,  which  also  is 
creating  a  demand  for  content,  and  the  network  phenomenon,  i.e.,  the  global  information  highway. 

The  question  is  who  should  benefit  from  these  increased  commercial  uses?  Much  creative  effort 
and  significant  capital  investment  went  into  the  creation  of  copyrighted  works  which  now  have  an 
extended  commercial  life.  It  seems  only  fair  that  the  authora  and  owners  of  these  works  should  be  the 
beneficiaries  as  long  as  the  term  of  protection  does  not  violate  the  limited  times  provision  of  the 
Constimtion.  Increased  income  to  publishers  helps  to  subsidize  the  creation  of  new  works,  which  is  of 
bene^t  to  the  public.  Thus,  as  long  as  copyright  owners  take  the  increased  income  and  use  it  for  the 
public  benefit,  such  as  in  the  creation  of  new  works,  the  constimtional  goals  are  met 

The  faa  that  many  works  have  an  economic  life  that  is  relatively  short  is  not  an  argument  in 
favor  of  a  shorter  tens.  For  such  works  a  lengthy  term  of  exploitation  is  immaterial.  One  of  the 
commentators  suggested  there  should  be  a  different  term  for  categories  that  do  not  require  such  lengthy 


"     Comment  97,  at  10  (CFPPA). 

"     S«e  Comment  6,  at  2  (SGA). 

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July  11.  1995  30 


192 


protection.  '*  In  fact  the  Berne  Convention  does  allow  a  shoner  tenn  for  photographs,  works  of  applied 
an,  and  cinematographic  works.  However,  the  United  States,  unlike  some  other  countries,  has  never 
differentiated  copyright  term  on  the  basis  of  the  category  of  the  work,  and  we  are  not  advocating  such 
an  approach. 

Another  concern  that  must  be  addressed  and  that  is  reflected  in  the  letter  of  the  library 
associations  to  Chairman  Moorhead,  is  that  where  a  work  no  longer  is  commercially  exploitable,  we  must 
ensure  that  it  is  still  accessible.  '^  This  is  an  issue  today  with  our  current  terms  of  protection.  It  is  an 
issue  that  would  be  made  worse  by  H.R.989.  Creative  ways  must  be  found  to  deal  with  this  issue. 

Librarians,  educators  and  historians  have  traditionally  opposed  any  extension  of  the  copyright 
term;  however,  library  associations  are  not  opposing  this  bill  per  se.  No  one  is  trying  to  deny  economic 
reward  to  creators  of  works  that  are  capable  of  and  are  being  commercially  exploited.  Rather  they  are 
asking  that  their  legitimate  concerns  be  addressed. 

Ideas  and  facts  are  in  the  public  domain,  and  fair  use  and  certain  exceptions  allow  students, 
patrons  of  libraries,  scholars  and  researchers  to  make  certain  uses  of  copyrighted  works.  But  as  we  move 
to  a  digital  environment,  it  is  unclear  how  all  this  will  play  out.  Key  issues  today  include  preservation  of 
materials  in  both  facsimile  and  digital  formats  and  guaranteeing  access,  including  electronic  access,  to 
copyrighted  works. 

There  is  a  critical  need  to  improve  American  education.  Libraries,  tike  the  Library  of  Congress 
through  its  National  Digital  Library  efforts,  are  anempting  to  bring  unique  copyrighted  materials  to  the 
American  educational  community.  The  Library  of  Congress  has  been  diligent  in  seeking  copyright 
permissions  for  its  Digital  Library  projects.    However,  it  is  exceedingly  difficult  to  determine  the 


"     Ricketson  supra  note  60.  at  770-1. 
"     See  supra  note  80. 


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July  11.  1995  31. 


193 


copyright  status  of  cenain  types  of  works,  e.g.,  photographs,  prints  and  labels.  Moreover,  finding  the 
current  owner  can  be  almost  impossible.  Where  the  copyright  registration  records  show  that  the  author 
is  the  owner  finding  a  current  address  or  the  appropriate  heir  is  extremely  difficult.  Where  the  original 
owner  was  a  corporation,  the  task  is  somewhat  easier  but  here  too  there  are  many  assignments  and 
occasionally  bankruptcies  with  no  clear  title  to  works. 

Limited  uses  of  older  copyrighted  material  for  instructional  activities  must  be  allowed.  "  With 
respect  to  libraries,  guidelines  could  be  worked  out  under  section  108  as  to  what  materials  might  be  used 
without  permission  or  paymem  as  long  as  the  use  was  related  to  instiuctioiul  activities  in  nonprofit 
educational  institutions. 

There  is  a  separate  issue  relating  to  facilitating  licensing  of  copyrighted  materials,  especially 
where  after  a  reasonable  search  the  copyright  owner  caimot  be  located.  A  mechanism  must  be  devised 
to  resolve  this  problent  In  Canada,  the  Copyright  Board,  a  govenunent  organization,  is  given  the  right 
to  grant  a  noi^-exclusive  license  for  the  use  of  previously  published  materials  where  the  copyright  owner 
cannot  be  fouixL  A  license  is  granted  only  if  every  reasonable  effort  has  been  made  to  find  the  copyright 
owner.  Such  a  license,  which  will  set  the  terms  and  conditions,  such  as  the  amount  of  royalties  to  be  paid 


"     There  is  also  some  confusion  about  what  can  be  used.  See,  e.g..  Comment  39  where  commentator  asseru 
copyright  registration  kept  him  from  using  a  70'$  PBS  series  to  learn  sign  language. 

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July  11.  1995  32 


194 


and  the  license  period,  only  covers  use  in  Canada.  "    Apparently,  Japan  and  Hong  Kong  have  similar 
provisions.  ^ 

Solutions  to  these  problems  might  be  forthcoming  if  the  Subcommittee  directed  the  panics  to 
work  these  issues  out.  If  the  Subcommittee  wishes,  the  Office  would  be  most  willing  to  try  to  facilitate 
this  process.  We  believe  we  have  considerable  expertise  in  this  area,  and  we  would  like  to  see  these  issues 
resolved. 

3.  Fair  Economic  Benefit. 

a.  Arguments.  Opponents  argue  that  the  existing  law  already  gives  authors  a 
sufficiently  long  term,  and  that  even  if  there  has  been  some  increase  in  life  expectancy  since  1976,  it 
would  not  warrant  a  20  year  extension  of  the  basic  term.  They  argue  that  the  existing  term  is  already 
long  enough  to  take  care  of  most  authors  and  their  heirs  and  that  it  should  not  be  extended  to  cover  a 
second,  succeeding  generation.  They  also  assert  that  the  longer  term  will  not  really  go  to  authors,  but 


"     Section  70.7  of  the  Canadian  copyright  law  provides  as  follows: 
OWNER  WHO  CANNOT  BE  LOCATED 

(1)  Where,  on  application  to  the  Board  by  a  person  who  wishes  to  obtain  a  license  to  use  a  published  works 
in  which  copyiight  subsists,  the  Board  is  satisfied  that  the  applicant  has  made  reasonable  efforts  to  locate  the  owner 
of  the  copyright  and  that  the  owner  cannot  be  located,  the  Board  may  issue  to  the  applicant  a  license  to  do  an  act 
mentioned  in  section  3. 

(2)  A  license  issued  under  subsection  (1)  is  non-exclusive  and  is  subject  to  such  terms  and  conditions  as 
the  Board  may  establish. 

(3)  The  owner  of  a  copyright  may,  not  later  than  five  years  after  the  expiration  of  a  license  issued  pursuant 
to  subsection  (1)  in  respect  of  the  copyright,  collect  the  royalties  fixed  in  die  license  or,  in  default  of  their  payment, 
commence  an  action  to  recover  them  in  a  court  of  competent  jurisdictioit 

^     §^  e.g.,  art.  67  of  the  Japanese  Copyright  Code. 

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July  11.1995  33 


195 


will  benefit  large  corporations.  "  In  panicular  they  assert  that  there  is  no  need  to  increase  the  terms 
for  works  for  hire  which  already  enjoy  a  longer  term  than  that  proposed  by  the  EU.  " 

Proponents  argue  that  the  existing  term  does  not  cover  life  expectancies  and  two  generations  " 
and  that  a  longer  term  is  needed  to  give  authors  and  copyright  owners  a  fair  economic  benefit.  "  They 
note  cases  where  the  copyright  expires  while  the  author  or  his  or  her  immediate  heirs  are  still  alive.  They 
assert  that  the  existing  term  is  unfair  since  it  does  not  account  for  the  untimely  deaths  of  some  authors 
or  for  works  by  mamre  authors.  ''  They  also  urge  that  the  term  should  be  longer  to  allow  a  reasonable 
return  on  economic  investments.  '* 

Furthermore,  they  assert  that  it  takes  a  long  time  to  recover  astronomical  production  costs  for 
books,  films,  plays,  and  computer  programs  and  that  they  never  recover  costs  on  most  of  the  works 
produced  in  these  categories.  "  One  author  asserted  that  even  in  writing  for  a  film  fo:  which  he  held 
no  copyright,  he  could  "couiu  on  the  duration  of  the  fllm  owner's  copyright  which  ensures  that  I  am 
compensated  for  future  exploitation  of  my  work  on  television,  videocassettes,  and  possible  merchandising 
or  publication,  etc...."  " 


"  Comment  97  at  S-8,  24  (The  Committee  for  Film  Preservation  and  Public  Access).  They  argue  that 
Corporaiions  are  not  natural  authors;  therefoie,  life  expectancy  is  irrelevant  for  works  for  hire.  Changes  in 
generational  age  are  meaningless  in  the  context  of  film  investments,  which  are  either  recovered  quickly  or  not  at 
all.   Id. 

"  See  e.g..  Comment  18  ai  I  (Reel  Movie  International). 

"  Comment  98  at  10  (CCCO  Supplementary). 

"  Ss  generallv  Comment  2  (MPAA);  Comment  1  ^fMPA;  Comment  3  (CCCO);  Comment  4  (ICMP). 

"  Comment  I  at  4,  5  (NMPA). 

•*  Comment  4  at  3  OCMP). 

"  S«  Comment  2  at  2. 

"  Statement  of  Michael  Weller,  Member  of  the  Writers  Guild  of  America,  Los  Angeles  Hearing  (June  I, 
1995). 

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July  II.  199S  34 


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b.  Evaluation.  Although  it  is  clear  that  the  existing  term  is  long  enough  to  take  care 
of  works  that  achieve  commercial  success  early,  most  works  do  not  fall  into  that  category.  As  discussed 
earlier,  a  number  of  works,  especially  serious  ones,  may  never  recover  what  it  costs  to  produce  them. 
A  number  of  authors  may  spend  a  great  deal  of  their  life  working  on  books  that  never  gamer  much 
income.  In  order  for  authors  to  keep  writing,  they  must  be  supported  by  publishers.  In  order  for 
publishers  to  keep  publishing  these  less  popular  authors,  there  must  be  sufficient  reason  to  believe  that 
they  can  recover  their  investments  on  other  works. 

For  these  reasons,  H.R.  989  would  provide  additional  money  that  could  be  used  to  invest  in  works 
by  untried  authors  or  serious  works.   Dissemination  of  such  material  does  benefit  the  public. 

4.  Harmonization. 

Harmonization  of  national  copyright  laws  provides  "certainty  and  simplicity"  in  imemational 
business  dealings.  It  also  brings  about  a  fairer  and  more  equitable  result.  In  1976  the  U.S.  adoption  of 
a  term  of  life  plus  SO  was  a  move  toward  international  harmonization.  At  that  point,  life  plus  SO  years 
was  the  standard  in  the  Berne  Convention,  and  the  vast  majority  of  countries  had  already  adopted  this 
term.  Although  there  were  countries  that  had  longer  terms,  there  was  no  significant  movement 
internationally  toward  a  longer  term.  Now  there  is  such  a  movement,  albeit  limited  at  this  time  to  Europe. 
a.  Aryuments.  Opponeius  argue  that  the  Berne  Conveiuion  and  the  GATT  TRIPs 
agreement  only  require  a  term  of  life  plus  50,  and  that  this  standard  will  not  be  raised  without  the  United 
States.  "  Therefore,  the  United  States  should  not  increase  its  teniL  Proponents  of  copyright  term 
extension  argue  that  the  EU  Directive  on  Term  once  again  creates  a  significant  difference  in  the  term  of 
protection  in  a  number  of  important,  industrialized  countries.  '°°   They  argue  that  the  term  should  be 


"     Comment  19,  at  13  (Law  Professors). 

'*■    Sec  e.g..  Comment  99.  at  7,  8  (NMPA). 

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July  II.  1995  '  •    .  35 


197 


increased  to  match  that  mandated  by  the  Directive,  and  they  assert  that  this  indeed  will  become  the  new 
standard. 

b.  Evaluation  of  arguments.  The  Copyright  Office  believes  harmonization  of  the 
world's  copyright  laws  is  imperative  if  there  is  to  be  an  orderly  exploitation  of  copyrighted  works.  In  the 
past,  copyright  owners  refrained  from  entering  certain  markets  where  their  works  were  not  protected.  In 
the  age  of  the  information  society,  markets  are  global  and  harmonization  of  national  copyright  laws  is, 
therefore,  crucial. 

There  has  been  a  distinctive  trend  towards  harmonization  over  the  last  two  decades;  however,  the 
development  of  the  global  information  infrastructure  makes  it  possible  to  transmit  copyrighted  works 
directly  to  individuals  throughout  the  world  and  has  increased  pressure  for  more  rapid  harmonizatioa 
This  is  reflected  in  the  exercise  to  create  a  Protocol  to  the  Berne  Conventioa  That  exercise  has  been 
characterized  as  a  norm  setting  exercise;  the  stated  goals  are  to  address  important  areas  where  application 
of  the  1971  Paris  Act  is  either  imdear  or  the  ituerpretation  of  existing  obligations  are  the  subject  of 
dispute. 

As  discussed  earlier,  H.R.  989  does  not  completely  harmonize  our  law  with  the  Directive  on 
Term.  In  some  cases,  the  U.S.  term  would  be  longer,  in  others  the  EU  terms  would  be.  These  areas 
include,  for  example,  the  provisions  for  pre- 1978  copyrights  and  terms  for  anonymous  and  pseudonymous 
works  and  the  EU  provisions  for  cinematographic  works  as  well  as  the  limited  cases  in  the  EU  where  a 
corporate  entity  is  a  rightsholder.  Moreover,  in  some  areas,  for  example,  sound  recordings,  our  present 
term  is  already  longer  than  that  called  for  in  the  Directive. 

It  does  appear  that  at  some  point  in  the  future  the  standard  will  be  life  plus  70.  The  question  is 
at  what  point  does  the  United  States  move  to  this  term?  If  harmonization  is  a  goal,  adoption  of  the  rule 
of  the  shorter  term  should  be  considered.  This  could  put  pressure  on  other  couturies  to  raise  their  term 
of  protection  for  sound  recordings  thereby  leading  to  harmonization  of  the  term  for  this  type  of  work. 

dirr\duraDon.loc 

July  II,  1995  36 


198 


B.         OTHER  CONSroERATIONS 

1.  Rule  of  the  shorter  term. 

Finally,  copyright  term  extension  without  adoption  of  the  rule  of  the  shorter  term  could  lead  to 
trade  imbalances  against  the  United  States  in  every  area  of  the  world  except  Europe.  This  is  because 
foreign  works  would  be  protected  for  the  life  of  author  plus  70  years,  while  U.S.  works,  outside  of 
Europe,  would  be  protected  only  for  the  life  of  the  author  plus  SO  years.  Therefore,  non-European 
foreign  authors  would  receive  copyright  royalties  for  twenty  additional  years  for  use  of  their  works  in 
the  United  Sutes,  while  no  offsetting  royalties  would  be  generated  for  U.S.  works  used  in  those 
countries. 

The  Office  is  not  taking  a  position  on  whether  the  United  States  should  go  to  the  rule  of  the 
shorter  term.  Adopting  this  rule  may  have  benefits  vis-a-vis  harmonization  and  economic  impact 
Others,  however,  have  recommended  that  the  United  States  should  adopt  this  rule,  and  that,  of  course, 
will  be  your  decision.  '°'  The  Coalition  of  Creators  and  Owners  provided  us  with  information  in  1993 
that  indicated  that  16  countries  applied  the  rule  of  the  shorter  term  and  that  at  least  two  more  would  have 
to  apply  it  in  the  future.  "" 

2.  TraiMfrrgq. 

The  fact  that  copyright  extension  vests  in  transferees  has  been  cited  by  opponents  of  term 
extension  as  another  objection.  Some  argue  that  giving  the  extra  term  to  assignees  may  be 
unconstitutional. 


'"     See  D.  Nirnmer,  Nation.  Ehiration.  Violation.  Hannoni^^ti<^^-  An  Intemational  Coovright  Proposal  for  the 
United  States.  55  Law  <Sc  Comtemp.  Probs.  211-4  (1992)  (submitted  as  Coimnent  7). 

""    See  Comment  98,  at  7,  8  (Joint  Supplemental  Comments  of  the  Coalition  of  Creators  and  Copyright 
Owners). 

dirr\(tunaon.ioc 

July  11,  1995  37 


199 


However,  in  19''6  the  copyright  term  for  pre- 1978  copyrights  was  extended  by  19  years.  There 
was  considerable  debate  as  to  who  should  be  the  beneficiary  of  those  extra  19  years.  Congress  chose  not 
to  vest  the  rights  in  those  extra  years  in  the  authors  of  those  works.  Instead,  it  created  a  mechanism  by 
which  authors  could  reclaim  those  rights  from  transferees — a  right  of  termination.  With  respect  to  these 
works,  notifications  of  termination  have  been  received  and  recorded  with  the  Copyright  Office  from  1978 
to  present.  '"' 

On  balance,  it  seems  that  authors  should  be  the  beneficiaries  of  the  longer  term.  '"  Clearly 
the  structure  of  the  present  law  with  the  two  termiiution  rights  covers  most  works.  In  these  cases  authors 
do  have  the  opportunity  to  benefit  from  the  additional  years.  In  the  case  of  pre- 1978  copyrights  for 
which  the  right  of  termination  has  not  yet  vested,  the  right  of  termination  would  cover  39  years  rather 
than  19  years.  For  new  law  works  and  for  transfers  that  were  made  on  or  after  January  1 ,  1978  the  law 
provides  a  right  to  terminate  such  transfers  generally  35  years  from  the  date  of  the  transfer.  Thus,  for 
these  works,  the  right  of  termination  is  available  and  authors  and  their  heirs  will  have  the  right  to  benefit 
from  the  longer  term. 

There  is  one  category  of  works,  however,  where  the  author  would  not  have  the  possibility  of 
striking  a  new  deal  for  the  extra  20  years — works  where  the  period  to  terminate  has  already  passed. 
Congress  may  wish  to  consider  the  possibility  of  creating  a  new  right  of  termination  for  these  works.  The 
Copyright  Office  has  been  recording  documents  concerning  the  termination  of  transfers  siiKC  1978.  Our 
experience  is  that  the  number  of  transfers  for  copyrighted  works  that  are  terminated  is  proportionately 
small  when  compared  to  the  universe  of  copyrighted  works  that  are  subject  to  termination  in  any  given 


""  Only  566  notices  of  termination  were  recorded  in  the  Copyright  Office  between  November,  1993  and 
May  S,  199S.   Of  these,  SSI  were  musical  works. 

'**  The  Nashville  Songwriters  Association  International  (NSAI)  Board  of  Directors  indicated  that  while  it 
wholeheanedly  supported  the  possibility  of  extending  the  copyright  term,  'it  would  oppose  legislation  directed 
toward  this  end  should  that  legislation  contain  any  extension  of  The  Right  of  Termination.'   Comment  24. 

dirr\duntionloc 

July  II.  1995  38 


200 


year.  By  far  the  vast  majority  of  tenninations  involve  musical  works  that  continue  to  be  commercially 
valuable. 

In  considering  the  right  of  termination.  Congress  should  examine  the  derivative  work  exception, 
especially  as  it  relates  to  musical  works,  and  the  effect  of  that  exception  on  authors  and  especially 
composers.  The  problem  of  small  scale  derivative  works  such  afi  musical  arrangements  versus  large  scale 
derivative  works  like  motion  pictures  is  fully  set  out  in  Mills  Music.  Inc.  v.  Snvder.  469  U.S.  153  (1985). 

Thus,  there  is  a  question  as  to  who  should  benefit  from  the  extension  of  the  term.  But  this  is  a 
different  question  from  whether  the  term  should  be  extended. 

rv.  CONCLUSION 

The  rapidly  expanding  international  market  for  copyrighted  materials  especially  in  light  of  the 
global  information  superhighway  supports  harmoniziiig  national  copyright  laws  and  adjusting,  where 
necessary,  international  copyright  treaties.  Indeed  such  haimonization  is  crucial.  Harmonization  as 
evidenced  by  the  European  Directive  has  many  advantages  including  simplifying  copyright  transactions. 
Achieving  harmonization  will  be  difficult,  but,  as  a  major  producer  and  exporter  of  copyrighted  works, 
the  United  States  should  lead  the  effort 

Except  for  sound  recordings,  anonymous,  pseudonomous,  and  collective  works,  the  European 
Union  has  generally  adopted  a  life  plus  70  standard.  Increasingly  as  countries  revise  their  laws,  the 
copyright  term  will  be  life  plus  70;  however,  the  United  States  does  not  have  to  move  to  life  plus  70  at 
this  time.  It  is  not  yet  the  iiuemational  norm  and  clearly  neidier  the  Berne  Convention  nor  the  GATT 
TRIPS  agreement  require  more  than  life  plus  SO. 

That  countries  with  copyright  terms  longer  than  life  plus  SO  adopt  the  rule  of  the  shorter  term, 
which  is  clearly  provided  for  in  both  the  Berne  Convention  and  die  Universal  Copyright  Convention, 

dirrWunaoii.loc 

July  II.  IMS  39 


201 


should  not  be  surprising.  What  we  now  have  is  at  least  15  European  countries,  i.e.,  the  European 
Community,  imposing  that  rule  as  of  July  1,  1995,  although  some  member  sutes  may  take  a  while  to 
implement  the  requirements  of  the  Directive  on  Term.  Thus,  if  the  United  States  does  not  go  to  the 
longer  term,  copyright  owners  will  be  denied  money  that  they  otherwise  would  be  entitled  to  receive. 

One  must  also  factor  in  what  will  be  the  cost  of  extending  the  term  in  the  United  States  since  this 
is  the  largest  market  for  U.S.  works.  Unfortunately,  there  are  no  meaningful  statistics  to  assist  in 
determining  the  cost  of  extending  the  term  and  the  benefits  to  be  gained.  Thus,  on  a  pure  economics 
analysis,  at  this  point  it  would  be  difficult  to  support  H.R.989.  Congress  could,  to  lessen  the  economic 
impact,  adopt  the  rule  of  the  shorter  term,  i.e.,  make  the  availability  of  extended  term  depend  on 
reciprocity.  This  would  be  most  helpfiil  in  the  case  of  sound  recordings  where  the  U.S.  extended  term 
would  be  45  years  longer  than  the  international  norm. 

On  the  issue  of  the  constitutionality  of  the  term  of  protection.  Congress  decided  in  1976  that  life 
plus  50  years  met  the  Constitutional  requiremem  of  'limited  times."  If  life  plus  50,  which  is  a  very  long 
time,  is  constimtional,  life  plus  70  would  seem  to  be  constitutional.  The  question  that  we  don't  face  here 
is  what  is  the  limit  on  "limited  times?' 

The  major  poiius  that  lead  the  Copyright  Office  to  support  H.R.  989  are  1)  the  need  to 
harmonize  copyright  terms  throughout  the  world  and  the  acceptance  that  life  plus  70  will  sometime  in  the 
future  become  the  ituemational  norm  and  2)  as  a  leading  creator  and  exporter  of  copyrighted  works,  the 
United  States  should  not  wait  imtil  it  is  forced  to  increase  the  term,  rather  it  should  set  an  example  for 
other  countries. 

While  the  Copyright  Office  generally  supports  H.R.  989,  we  do  oppose  adding  ten  years  to  the 
term  of  the  unpublished  works  covered  by  17  U.S.C.  303.  We  believe  there  is  also  a  question  as  to  who 
the  beneficiary  of  the  extra  20  years  should  be  especially  in  cases  where  there  is  no  existing  termination 
right.  We  also  condition  our  support  on  working  out  solutions  for  libraries  and  educational  instiwtions 

dl^^^dunaoaloc 

July  II.  1993  40 


202 


that  will  address  questions  of  preservation  and  access  and  also  clarify  the  appropriate  nonprofit 
educational  uses  that  are  beyond  fair  use.  We  have  made  several  suggestions  concerning  how  these  issues 
can  be  resolved  including  adopting  a  system  similar  to  the  Canadian  one  for  authors  who  cannot  be 
located,  developing  guidelines  under  §108  for  materials  that  can  be  used  without  payment  for  nonprofit 
educational  purposes  or  perhaps  excluding  such  uses  from  the  extended  term.  Solutions  to  these  problems 
would  be  more  forthcoming  if  the  Subcommittee  directed  the  panies  to  work  this  out,  and  the  Office 
would  be  willing  to  assist  in  facilitating  agreement  on  possible  solutions  to  the  problems  of  preservation 
and  access  of  older  copyrighted  works. 


dirrVduranoitloc 

July  11,  1995  41 


203 


AKGUMINTS  nW  AIGUMZNTS  MiASNST 

TKADI  BALANCX  1.      A»  »  mi  exfotm  of  iwrllTdiil  proywty.  at  UniMd  S<—    I.      iHua  vnb  ropaa  to  mac  imlaluica  in  mm  com|iici 

wcuM  iofion  Us  tntt  liilinri  br  ooRrriflC  an  tanHBa  itia  (kyaitf  by  proixjnMM  o(  HX  9S9  wiuic  us  u  S 

cnmatty  caioTi  a  tBif«  end*  nrih*].»r»  ji  jueijecnul 
pnf«ty,  aott  of  dii  ■■***'«"^  invotvei  coouaiponry 
vofti,  SKfe  M  pofBlir  auk,  louotf  r«co<ilui(i.  axxioa 


Uodca  SaM  u  a  mxtd  IcaMr  la  aJiryiilM  imiiliin   B)r  ahcdy  (br  ifet  aki  oruatemr.  Tbay  (iid  ooi  a>oiid« 

iipfndiii(ourpniiaa»a«bea>,«aaBaiiitsattKcai^Bm  or  balaanaay  of  ikckcBn  axcooaisio  bt  loponaa. 

u>  mcnaaa  mar  oaoood  Wnt  of  pnaaaio&  IiaMaA  of  OBfty  Uo«iig  Omu  i>  vould  ba  bcair  dor  lai 

UniM  Sam  id  aaa  m  aOamm  id  afwiraga  ma  laa  of 
ihi  «aM  ID  nam  ■  ifta  Gurraa  ioafaaiiaal  nadaitf. 

HAMMMZATION  3.     EaraaaOy  ialifliorikDNnaaiGa  bvBomMioaabaEaa-   3.     HitmamBtlBmhimanmtMiMimffnfnmJiaam 

ml  craciai:  ikit  ia  OD  luii|«  a  ^Haiioa  of  it  b«  arka&  coapraaimi  oitai      |    ■    ■  pnadftaa.    Puntav.  te 

Punta*.  »T  ■-■— i-'i  aritt  ita  eU.  «■  UniM  SMm  amM  iob  cmmoa  prapoai*  ia  HX  9*9  voiM  ooi  miia  U  S. 

law  niMfaiim  wiik  Ganpaa  lain.  Tba  U  S  already 
excaade  m  Eufopaaa  ladarta  Ibrarovta  (brbut.  Eaaa- 
oiH  of  HX  9M  voiM  oaly  widaa  im  p^ 

Tte  CMBaa  !■■  of  liib  pm  50  yean  providca  autaoci 
«tt  afflciaB  iae^riaa  B  praduea. 

LO^N3■  UR/HEnS        5.      SiacaihtfoaliaiDpnaataoiaBmaiofaaaatBf'ihaiia.    5.     Tha  bain  of  la  miai  aay  aoi  can  eaouft  lo  aaure  ibai 
copytifti  dunttoa  akoaM  ba  eaaadad  id  acaonodaH  iba  iba  aitia'i  *ott  la  Uft  liiva.  Tbc  |o*l  ibould  ooi  be  u> 

iDcnaaa  ia  lift  aayaOHsy  aad  m  mad  m«4  pospoaas  mratd  aa  auKter'i  gnnrtrtatiiTaD  for  tbt  auibDr'i  vorti; 

childbaanaf  uai  IMar  ia  lift.  mtaar,  tba  gnadmUraa  iboutd  ba  (onad  lo  vnic  ibcu 

owaanrta. 

SERIOUS  WOXKS  6.      SiiiEaibapofalaa(yofnniaa«atia0«aaialaa(cy<iaa,aa*   t.     Govanoaa  aibadiatioa  of  ibaaa  spadal  vorti  lix  iba 

^rl^■laapllllir^tn■a^d^re^«^o^of■^»»^l^tllall^lai^ila,  potfic  baaatt  Bi(ti  ba  a  baaar  iJiaraaBvc  lAu  lana 

aaauttormay  aothaaMalofaapibaaGoaDnicfawardafcrbia  f  nmina 

woit  te  Baav  yaan  a>K  cnaooB,  Tbaaa  araita,  itaa,  iboaM 
(ciiba  baafll  of  a  loa|B  danboK, 

LNEQUmS  7.     Emamaafdanbnvillailrnmibiiaaqaibaacaaaadbytba  7.     Tba  lam  it  afeaady  kia|  aasufh  u  cover  aicta  oopuiaa. 

taaattf  daam  of  loat  iiabon  (Joba  Uaaoa),  iha  litiba  of 
oaona  bia  ad  pmbflc  auibon  (Laooaid  l>aniaiaia),  tad  iba 
ilcaiba  of  lUbDn  wboaa  wnta  do  on  rasan*  any  innaina 
luol  tfiar  ibt  tuiboc  diaa. 


204 


ptRreTtTnr 

'.  LOOTED 


*^3dT  a>«iiaMe  » cDe  pubtac  ttaa  vorts  ifl  UK  puMjc  doinua. 
^A>t^KM(  gunaaeo  of  excteswy  -a  aaoufaaunag  lad 
Jianftuooo.  a  pttbtaslMr  Witt  oAea  dectioe  u}  JTrea  la  cat  puMi- 
aDoa  oC  a  puMc  dooaia  work  for  feir  ^f  a  se^emy  juma- 
;s&ed  LI  pnn—r  nan.  The  resuB  a  a  ^eanb  ^r  quiity  capia 
of  BBay  «octs  after  tftor  fBfa  of  proceaioa  bu  uptnd. 


1  >3  iOon  a  ;enn  tanm  c&e  autaor  «>itbou  gv-Mif  any  uMtta- 
uai  acaedt  u  U!k  pufibc  The  puOtK  &cqueaily  payi  ctic  afflt 
for  »orts  Ji  ::x  pbMic  icaaia  u  i  ic€t  for  »prnfaied 
•ore  and  :ae  ooiy  rout  j  a  ■.■■<»■—'■  »«*  vnia^  »  ceruia 
UBn  ac  OK  autaor's  expcoM. 


Enenaoo  of  ;&»  wm  ^  ZO  ; 
'ruKvort.  ^~«v«d  a  Lsm  ^  3ioni  r^tB  of  :&b 
WOK  say  ankTruai  propcry  saouid  te  veacri  m  per\ 
Ajiy  foenaoo  (hm  praMa-<^y  dunooa  vouM  ba  a  ibd- 
ji  ceepog  v«ft  ;Am  vv«  of  aonl  nfttt. 


P'jWk  Jomain  wofta  are  mporum  c  sx  rresenauon  of 
:«ea(ja&  ;eflQu>  outure  ExiensKxi  *o^Jd  iurle  poteniui 
^^ofTlpOe^  *oo  fau  uj  oeum  pemuiSion  u?  j&c  :op*r  joi- 
ed  suunau.  Oocumaxina  and  sducaoonai  r'uma  caxuioi 
3e  sade  *iiboui  acceaiMc  puMic  Jemam  luicnais. 
Thenfore.  saoy  ^mponaisvoftscAaiEu^eeducaucnaiaad 
;u&MXU  JDporuace  ^^  oUicr  aoc  ^e  :nade  x  *m  be 
oaccenbk  u  c&e  pubdc  EnnuOTo  vUI  ream  .a  aimoa 
^mpioc  jBCcembdicy  of  a  ^arfc  pcxtwa  of  ovr  iKXioa 
p^c&n  fiemaie. 

TV  oiomaie  coaof 'xm  exuasioa  a  patd  by  Jk  coosuaser 
ji  'Jm  fTCMer  :ocu  of  Jk  ^lU&Bd  pnjdiKU.  ^  ^opynftt 
cxtfaatoo  *iil  .-csuji  <n  ;Qon  iKzosuif  cooa  for  amuic  aad 
51m.  EjaeasoG  poopooei  <Jic  uts  u  %  tacfl  *T}rts  w^u  go 
JBO  UK  puotic  oooHxa.  *tiK&  puu  ofTibc  dauu  *iiKti  me 
«ofti  ^tcooM  caapcr  to  produce  aad  Suy 

t  vioUiei  ite  L'tBted  States  coosuuDoael 
I.  vtMca  ipeaflcaiiy  pre>^dei  for  a  dflued  mn  of 
pnxecaoa.  The  purpov  of  ccpyn^  it  aoc  nmpty  u 
provide  lacooe  (br  wi&on  aod  creaion;  nuser  copynffit 
ibmM  Mrvt  ifte  puAtac  by  acourifiai  oe«  cmuooa  tad 


TTCHNOtOGY 


iift    11.    Tte  air«  ■  atatfy  taag  caoufk  ID  I 


>  tadtadMf  oo^Bf^    IL    CofpocMi  imHv  bem  qdi  4oqb  tayttnf  id  tneni  as 
la  tt  croboa  ori  eacaaari  ar^  Mevooooa  pvan  aad  amc  aidioi  do 

oat  pey  lo  piWHi^  kMocK  fiboK.  y«i  tbay  uuMiut  t&e  ooty 


ia«  or  aMBoyai.  EaaaAag  tanr  axnopoty  vshoia  a  cor 
xipoaaiac  n^HaaaB  to  fc><V  (&■  ^xxaf*  '•tiMe  vui  ooty 
I  of  tfts  pBfaOc  record 


mUCtXfXITT 


■  oatyi  audfUoflutvcoopaaa. 
an  It*  puMic  EoMBoa  pan  Oi  ndi  or  iHc  puMk  ui 

■).  SimM  QUBOBMEi.  Kflcun.  AOri  aHJeoon 

>d  •■  I  llMMt  ■.  wHM  ■  fev  uif* 

iwB  Ooaratt.  Tbtra  a  oe  public 


CREATTVl 
OEBIVATraN 


14.    Co^vTifti  d  la 

fntaarrxj  iM  %•»  aa 


puMe  beoBM  <  lUsvi  ararr*  uen 
gtsKM  paMc  aaxB  10  iM  ««t>.  u<  •  lacraaa  faiUie 
ezpoaK*  n  Oo  >«tt  (tor.  taoaf  oitar  iteafi,  educnooal 
u4  toaarca  purpoaaa.  Steaat  offivnliMic;  br  :u]  yean 
voald  mfla  3<Km  cflbnt.  imile  puoaf  vorti  ji  Ja 
puMic  teSBB  vcttid  eataaea  creaBvvy  ^  OKOiinfiag  UK 


205 

Mr.  GOODLATTE  [presiding].  Thank  you,  Ms.  Peters. 
Ambassador  Barshefsky. 

STATEMENT  OF  AMBASSADOR  CHARLENE  BARSHEFSKY,  DEP- 
UTY U.S.  TRADE  REPRESENTATIVE,  OFFICE  OF  THE  U.S. 
TRADE  REPRESENTATIVE 

Ms.  Barshefsky.  Thank  you  very  much,  Mr.  Chairman  and  Mr. 
Conyers.  It's  a  pleasure  to  be  here. 

I  ask  that  my  full  statement  be  accepted  into  the  record. 

Mr.  GoODLATTE.  And  it  will  be. 

Ms.  BARSHEFSiC5f.  Our  copyright  law  provides  strong  protection  to 
the  rights  of  American  creators  and  artists.  It  also  provides  a  flexi- 
ble market-responsive  means  of  transferring  and  exploiting  these 
rights.  These  two  factors  have  enabled  the  U.S.  copyright-based  in- 
dustries to  become  the  clear  leaders  in  the  creation  and  supply  of 
informational  materials  and  entertainment  products  around  the 
globe.  Consumers  all  around  the  world  appreciate  the  quality  of  our 
films,  music,  books,  and  software.  This  enables  our  cop3nnight  indus- 
tries to  generate  very  significant  positive  trade  flows  for  the  United 
States. 

Recognizing  the  importance  of  the  U.S.  copyright  industries  in 
the  U.S.  economy  and  in  our  international  trade,  the  Office  of  the 
U.S.  Trade  Representative  has  given  very  high  priority  to  raising 
the  level  of  protection  afforded  copyrighted  works  around  the  globe 
and  of  securing  market  access  for  these  works.  We  will  continue  to 
pursue  these  objectives  using  a  wide  range  of  mechanisms. 

First,  through  bilateral  agreements,  particularly  with  countries 
that  we  have  identified  under  the  special  301  process  as  failing  to 
provide  adequate  and  effective  protection  of  intellectual  property 
rights — this  is  the  mechanism,  for  example,  that  we  have  utilized 
most  recently  in  connection  with  China. 

Second,  through  monitoring  and  enforcement  of  the  ground- 
breaking Uruguay  Round  Agreement  on  trade-related  aspects  of  in- 
tellectual property  rights,  the  TRIPS  Agreement. 

Third,  through  regional  exchanges  such  as  in  APEC,  the  Asia  Pa- 
cific Economic  Cooperation  Forum,  and  in  the  Americas  through 
the  free  trade  of  the  Americas  process. 

And,  last,  through  negotiating  in  the  World  Intellectual  Property 
Organization,  WIPO,  the  international  rules  needed  to  insure  the 
protection  of  copyrighted  works  that  will  be  transmitted  over  the 
global  information  infrastructure. 

Mr.  Lehman  will  review  for  the  subcommittee  the  full  range  of 
issues  that  the  administration  has  considered  in  assessing  H.R. 
989.  In  light  of  my  agency's  missions  and  responsibilities,  I  would 
like  to  focus  on  the  international  trade  implications  of  the  proposed 
legislation. 

Based  on  recent  changes  to  the  laws  of  the  European  Union 
member  states,  the  passage  of  H.R.  989  would  have  a  positive  ef- 
fect on  our  balance  of  trade.  The  member  states  of  the  European 
Union  are  in  the  process  of  implementing  the  1993  European  Coun- 
cil directive  to  harmonize  their  copyright  terms  to  70  years.  The  di- 
rective requires  member  states  to  deny  the  increase  in  protection, 
to  deny  the  additional  20-year  protection,  to  foreign  nationals  of 
any  country  that  does  not  also  provide  long  terms  to  nationals  from 


206 

the  E.U.  member  states.  The  directive  takes  advantage  of  a  rare 
reciprocity-based  provision  in  the  Berne  Convention  called  the  rule 
of  the  shorter  term,  which  permits  reciprocity-based  extensions  to 
the  life-plus-50-year  term  required  by  the  convention. 

In  light  of  the  differences  in  the  terms  of  protection  for  certain 
works  and  rights  in  the  U.S.  and  E.U.  systems,  some  U.S. 
rightholders  will  be  denied  the  extended  term  in  the  European 
Union  if  the  U.S.  term  of  protection  is  not  also  increased  accord- 
ingly. I've  detailed  in  my  written  testimony  how  U.S.  rightholders 
would  be  affected  in  E.U.  member  States  if  H.R.  989  is  enacted. 

In  sum,  the  increase  in  the  term  of  protection  called  for  by  the 
legislation  will  permit  the  creators  of  works  that  are  not  made  in 
a  work-for-hire  context,  such  as  independent  writers,  composers, 
playwrights,  architects,  painters,  and  sculptors,  to  enjoy  a  term  of 
protection  that  is  life-plus-70  years  rather  than  life-plus-50  years. 
Additionally,  the  owners  of  certain  works-for-hire,  such  as  motion 
pictures,  will  enjoy  the  right  to  exploit  the  films  in  the  EU  member 
states  for  up  to  20  years  longer  than  the  75  years  they  now  have. 

The  countries  of  the  European  Union  are  a  large  and  very  afflu- 
ent market  for  U.S.  copyrighted  works.  According  to  a  number  of 
our  copyright  industries,  European  accounts  for  more  than  half  of 
their  international  revenues,  and  the  reach  of  European  law  will 
extend  to  the  E.U.'s  neighbors  to  the  east  and  south  as  they  at- 
tempt to  harmonize  their  legislation  with  E.U.  standards  to  forge 
closer  associations  with  the  European  Union.  Given  our  large  sur- 
plus in  trade  with  Europe  in  copyrighted  works,  I'm  confident  the 
term  extension  in  the  United  States  will  generate  more  revenues 
for  the  United  States  than  it  will  cost  us  in  outflows. 

Mr.  Chairman,  Mr.  Conyers,  one  of  the  main  trade  policy  objec- 
tives of  USTR  is  to  promote  the  establishment  of  legal  and  enforce- 
ment structures  overseas  that  allow  our  intellectual  property  rights 
industries  to  exercise  their  rights  in  the  intellectual  property  that 
they  create.  In  that  role,  we're,  of  course,  much  more  accustomed 
to  commenting  on  changes  in  foreign  laws  than  we  are  in  comment- 
ing on  changes  on  U.S.  domestic  law.  Nonetheless,  there  is  no 
doubt  that  H.R.  989  has  international,  as  well  as  domestic,  implica- 
tions. Its  passage  would  have  a  positive  effect  on  our  trade  balance, 
and  USTR  strongly  supports  its  passage. 

I'd  be  happy  to  answer  any  questions  the  committee  has  on  the 
international  implications  of  the  legislation.  Thank  you. 

[The  prepared  statement  of  Ms.  Barshefsky  follows:] 


207 

Prepared  Statement  of  Ambassador  Charlene  Barshefsky,  Deputy  U.S.  Trade 
Representative,  Office  of  the  U.S.  Trade  Representative 

I  am  pleased  to  have  the  opportunity  to  convey  to  the 
Subcommittee  the  views  of  the  Office  of  the  United  States  Trade 
Representative  concerning  H.R.  989,  the  Copyright  Term  Extension 
Act  of  1995. 

There  can  be  no  question  of  the  importance  of  strong 
copyright  protection  in  promoting  the  creation  and  dissemination 
of  works  of  art,  literature,  music,  film,  photography,  drama  and 
architecture.   The  laws  of  the  United  States  afford  strong 
protection  to  the  rights  of  its  creators  and  artists;  our  laws 
also  provide  for  flexible,  market-responsive  means  of 
transferring  and  exploiting  these  rights. 

This  system  of  copyright  protection  has  contributed 
immeasurably  to  the  richness  of  our  culture.   It  has  also 
provided  a  firm  basis  for  the  development  of  a  dynamic  copyright 
industry  that  has  made  the  United  States  a  world  leader  in 
supplying  informational  materials  and  entertainment  products 
around  the  globe.   Because  our  films,  music,  books,  and  software 
are  attractive  to  consumers  around  the  globe,  our  copyright 
industries  consistently  generate  a  trade  surplus  for  the  United 
States . 

We  must  also  recognize  the  importance  of  copyright 
industries  to  our  economy.  Our  copyright -based  industries  employ 
thousands  of  workers  in  the  United  States  and  are  employing  new 
workers  at  almost  three  times  the  annual  rat%Qf  the  economy  as  a 
whole.  These  U.S.  industries  contribute  over  >^*billion  in 
foreign  sales,  more  than  any  other  U.S.  industry  except 
agriculture  and  aircraft,  and  are  growing  at  twice  the  annual 
rate  of  the  economy. 

Recognizing  the  significance  of  the  U.S.  copyright 
industries  in  our  international  trade,  the  Office  of  the  U.S. 
Trade  Representative,  in  conjunction  with  other  U.S.  Government 
agencies  and  the  Commerce  and  State  Departments,  has  given  high 
priority  to  raising  the  level  of  protection  afforded  to 
copyrighted  works  around  the  globe,  and  to  securing  market  access 
for  these  works. 

We  negotiated  the  WTO  Agreement  on  Trade-Related  Aspects  of 
Intellectual  Property  Rights  (the  TRIPs  Agreement)  which 
established  strong  international  disciplines  in  an  area  of  great 
importance  to  the  U.S.  economy  and  was  one  of  the  most 
significant  achievements  of  the  Uruguay  Round.  At  the  same  time, 
we  continue  to  make  effective  use  of  the  Special  301  process  and 
other  bilateral  channels  to  advance  our  goals.   This  year,  we 
concluded  a  far-reaching  agreement  with  China  on  the  enforcement 


208 


of  intellectual  property  rights,  and  on  market  access  for  those 
who  depend  on  the  exploitation  of  those  rights.   Our  copyright 
industry  arguably  is  the  primary  beneficiary  of  this  combination 
of  enhanced  protection  and  market  access.   Among  other  things, 
the  agreement  required  China  to: 

--  take  immediate  action  against  those  well-known  factories 
producing  huge  quantities  of  pirated  and  counterfeited 
products; 

--  make  structural  changes  to  ensure  effective  enforcement 
of  intellectual  property  rights  over  the  long  term,  with 
coordination  of  enforcement  efforts  at  the  national, 
regional  and  local  levels; 

--  prohibit  the  use  of  infringing  products  --  particularly 
computer  software  --  in  government  ministries; 

--  create  a  customs  enforcement  system  modeled  after  the 
U.S.  system; 

--  create  a  title  verification  system  to  help  prevent  the 
unauthorized  production,  importation||iexportation  and  retail 
sale  of  U.S.  audio-visual  works, 

--  allow  U.S.  intellectual-property  related  corfipanies  to 
enter  into  joint  ventures  for  the  production,  reproduction 
and  distribution  of  their  products  within  China. 

In  some  areas  of  the  agreement,  China  has  gotten  off  to  a 
good  start,  with  establishment  of  enforcement x.task  forces,  raids 
against  computer  software  pirates,  action  against  CD-ROM  piracy, 
and  issuance  of  new  regulations.   At  th^  same  time,  we  recognize 
that  piracy  remains  a  serious  problem  in  China,  and  that  we  must 
keep  up  the  pressure  on  China  to  implement  the  agreement 
effectively.   USTR  has  established  an  Executive  Secretariat,  with 
private  sector  participation,  to  collect  and  analyze  information 
on  China's  implementation  of  the  agreement,  and  to  coordinate 
training  programs.   A  high-level  USTR  team  plans  to  visit  China 
for  consultations  under  the  agreement  in  late  July. 

In  April  1995,  to  address  the  uncontrolled  piracy  of  U.S. 
sound  recordings  in  Bulgaria,  we  reached  a  detailed  agreement 
with  Bulgaria  on  the  protection  of  U.S.  copyrighted  works.   Under 
that  agreement,  Bulgaria  signed  on  to  the  Geneva  phonograms 
Convention,  amended  its  laws  to  make  copyright  infringement  a 
criminal  offense,  and  committed  itself  to  put  into  place  a 
copyright  verification  system. 

Also  in  April,  to  address  the  rampant  piracy  of  U.S. 
copyrighted  works,  particularly  computer  software,  in  Indonesia, 
we  secured  a  commitment  from  the  Government  of  Indonesia  to 
undertake  significant  efforts  to  fight  copyright  piracy. 


209 


In  the  coming  years,  we  will  use  existing  multilateral 
mechanisms,  such  as  the  TRIPS  Agreement,  and  bilateral 
mechanisms,  such  as  the  Special  301  of  our  Trade  Act,  to  combat 
the  piracy  of  U.S.  copyrighted  works.   We  will  also  work  on  a 
regional  basis  --in  Asia  and  in  the  Americas  --to  seek  better 
IPR  laws,  and  to  ensure  that  these  laws  are  enforced.   Finally, 
we  will  work  with  other  agencies  in  the  U.S.  government  to 
negotiate  with  our  trading  partners  the  international  rules  that 
will  be  needed  to  ensure  the  protection  of  copyrighted  works  that 
will  be  transmitted  over  the  Global  Information  Infrastructure. 

It  is  against  this  backdrop  that  I  will  assess  the  impact  of 
HR  98  9. 

It  is  clear  that  there  are  numerous  factors  and  interests  to 
take  into  account  in  determining  whether  a  copyright  term 
extension  of  20  years  is  in  the  overall  interests  of  our  country. 
Many  of  the  domestic  issues  connected  with  this  decision  lie 
outside  the  competence  of  the  Office  of  the  United  States  Trade 
Representative.   We  are  therefore  reluctant  to  insert  this  Office 
into  a  discussion  of  the  full  range  of  questions  that  the 
Subcommittee  has  before  it. 

The  focus  of  this  statement,  rather,  will  be  on  the 
implications  for  our  trade  balance  of  an  extension  of  the 
copyright  term.  '- 

It  is  impossible  to  talk  about  those  effects  without  taking 
note  of  the  fact  that  less  than  two  weeks  ago,  the  European  Union 
implemented  a  decision,  taken  in  1993,  to  harmonize  its  copyright 
term  at  life  plus  70  years.   This  means  that  all  members  of  the 
European  Union,  with  the  exception  of  Germany  (which  already  had 
a  term  of  protection  of  life  plus  70  years)  had  to  extend  the 
term  of  protection  that  they  provide  to  their  own  copyright 
holders,  and  to  copyright  holders  from  the  other  member  states. 

Unfortunately,  the  members  of  the  European  Union  are  under 
no  international  obligation  to  extend  this  longer  term  of  ■• 
protection  to  U.S.  right  holders,  or  to  right  holders  from  any 
other  country  that  does  not  provide  a  reciprocal  term  of 
protection  to  works  of  European  authorship.   The  so-called  "rule 
of  the  shorter  term"  in  Article  7(8)  of  the  Berne  Convention 
permits  member  countries  to  limit  the  term  granted  foreign 
origin-works  to  the  term  of  protection  provided  in  the  country  of 
origin.   In  other  words,  Berne  member  countries  are  permitted  to 
provide  terms  in  excess  of  that  required  by  Berne  --  generally 
life  plus  fifty  years  --  to  nationals  of  other  Berne  member 
countries  on  the  basis  of  reciprocity  rather  than  national 
treatment.   The  EU  directive,  taking  advantage  of  this  rare 
reciprocal  provision  in  Berne,  requires  member  states  to  apply 
the  rule  of  the  shorter  term  to  non-EU  nationals,  except  in 
certain  narrowly  defined  circumstances. 

As  a  result,  U.S.  right  holders  will  not  be  able  to  take 


210 


advantage  of  the  longer  term  of  protection  in  EU  member  states  if 
they  are  s\ibject  to  a  shorter  term  in  the  United  States.  Because 
some  works  protected  under  U.S.  law  already  receive  a  longer  term 
of  protection  than  in  the  EU  system,  the  longer  terms  provided  by 
this  legislation  will  have  no  effect  on  the  term  of  protection 
they  receive  in  Europe.  Other  U.S.  works,  however,  are  currently 
provided  a  shorter  term  of  protection  than  in  Europe,  so  will 
receive  a  longer  term  if  the  U.S.  term  is  extended. 

In  the  U.S.,  works  whose  term  is  measured  from  the  life  of 
the  author  --  where  the  work  is  created  outside  an  employment 
relationship  and  the  author  is  known  --  are  currently  granted  a 
term  of  protection  of  the  life  of  the  author  plus  fifty  years. 
If  the  U.S.  term  is  modified  to  life  of  the  author  plus  seventy 
years,  these  authors  or  their  assigns  will  enjoy  a  longer  term  of 
protection  in  the  EU  member  states.   As  a  result,  paintings, 
books,  sculptures,  plays,  architectural  drawings  and  other  such 
works  would  enjoy  twenty  more  years  of  protection  in  EU  member 
states  if  H.R.  989  is  passed. 

On  the  other  hand,  works  made  for  hire  are  protected  under 
current  U.S.  law  for  a  term  of  seventy-five  years  from  their 
publication  or  100  years  from  their  creation,  whichever  expires 
first.   Right  holders  in  works  subject  to  this  rule,  such  as  the 
producers  of  sound  recordings  and  films,  currently  enjoy  a  term 
of  protection  twenty  five  years  in  excess  of  that  pr'ovided  by  the 
EU  system,  which  is  fifty  years  from  first  publication  or 
communication  to  the  public.   Because  the  maximum  term  of 
protection  for  producers  of  sound  recordings  and  films  in  the  EU 
system  is  fifty  years,  increasing  the  work  for  hire  term  in  the 
U.S.  to  ninety  five  years  will  have  no  effect ^on  the  term  they 
are  granted  in  the  EU  system.   As  I  will  now  explain,  however, 
there  is  a  means  through  which  U.S.  filni  producers  would  benefit 
in  Europe  from  term  extension  in  the  United  States. 

If  H.R.  989  or  similar  legislation  is  adopted,  right  holders 
in  some  U.S.  works  made  for  hire  will  be  able  to  exploit  these 
works  in  EU  member  states  for  up  to  twenty  years  longer  than  they 
can  under  the  current  system.   The  contracts  under  which  these 
works  are  created  typically  permit  the  person  for  whom  the  work 
is  created  to  exercise  all  economic  rights  granted  to  the  actual 
creator  of  the  work  throughout  the  world.  In  the  case  of  films, 
for  example,  directors  are  considered  the  authors  under  the  EU 
system  and  are  given  a  term  of  protection  of  life  plus  seventy 
years.   These  rights  are  in  addition  to,  and  more  expansive  than, 
those  rights  granted  directly  to  the  producer  that  I  just 
mentioned.   But  pursuant  to  the  contracts  under  which  U.S.  films 
are  made,  all  rights  granted  to  the  directors  of  the  films  by  EU 
member  states  are  exploited  by  the  producers  of  U.S.  films. 

The  term  of  protection  granted  directors  of  U.S.  films  in 
the  EU  system,  however,  is  capped  by  the  term  granted  the  film  in 
the  United  States.   Currently,  then,  the  life  plus  seventy  year 
term  they  are  granted  in  the  EU  system  is  capped  by  the  seventy 


211 


five  year  term  granted  in  the  United  States.   if  the  U.S.  work 
for  hire  term  is  extended  to  ninety  five  years,  the  term  of  life 
plus  seventy  years  granted  directors  of  U.S.  films  in  the  EU 
system  would  be  capped  at  ninety  five  years  rather  than  seventy 
five  years.   Directors  of  such  films  would  therefore  receive  -- 
and  the  producers  who  hold  their  rights  would  therefore  enjoy  -- 
up  to  twenty  years  more  protection  in  EU  member  states,  depending 
on  the  life  span  of  the  director. 

Consequently,  if  the  U.S.  extends  its  copyright  term  in 
accordance  with  this  legislation,  some  U.S.  right  holders  will  be 
able  to  collect  revenues  from  the  exploitation  of  their  works  in 
Europe  for  up  to  an  additional  20  years. 

The  countries  of  the  European  Union  are  a  large  and  affluent 
market  for  U.S.  copyrighted  works.   The  population  of  the  member 
states  of  the  EU  -  -  ever  increasing  in  number  --  is  now  nearly 
370  million.   Moreover,  the  reach  of  EU  legislation  will  expand 
even  further  in  the  coming  years.   Turkey,  for  example,  has  just 
enacted  legislation  to  raise  its  copyright  term  for  newly-created 
works  to  life  plus  seventy  years.   It  is  unlikely  that  Turkey 
would  have  done  so  were  it  not  for  the  need  to  meet  the  standards 
of  EU  protection  of  intellectual  property  rights  as  part  of  the 
obligations  it  took  on  in  concluding  a  Customs  Union  agreement 
with  the  EU.   The  countries  of  east-central  Europe  are  also 
moving  in  the  direction  of  harmonizing  their  legislation  with  EU 
standards  as  they  move  toward  eventual  membership  in  the 
Community. 

Given  the  preponderant  balance  in  the  U.S.  favor  in  US-EU 
trade  in  copyrighted  works,  an  additional  20  years  of  copyright 
protection  on  both  sides  of  the  Atlantic  would  add  more  to  the 
revenue  flows  headed  from  the  EU  to  thej^U.S.  than  it  would  to  the 
monies  we  would  be  required  to  pay  out  to  Europe.  While  the 
Administration  has  not  undertaken  the  complex  process  of 
quantifying  the  precise  extent  of  these  benefits,  the  Motion 
Picture  Association  estimates  that  term  extension  would  result  in 
a  modest  increase  of  revenues  from  international  sources  of. less 
than  $1  million  per  year  by  2000,  and  $3  million  per  year  by 
2010,  rising  more  dramatically  to  $160-200  million  by  2020.   One 
of  our  two  major  music  collecting  societies  estimates  additional 
international  revenues  of  $14  million  per  year  if  U.S.  right 
holders  are  in  a  position  to  take  advantage  of  a  further  20  years 
protection  in  Europe. 

In  view  of  the  international  benefits  to  U.S.  rights  holders 
as  a  result  of  copyright  term  extension  as  proposed  by  HR  98  9, 
the  Office  of  the  United  States  Trade  Representative  supports  the 
proposed  legislation. 


212 

Mr.  GOODLATTE.  Thank  you,  Ambassador. 
Commissioner  Lehman,  welcome. 

STATEMENT  OF  BRUCE  A.  LEHMAN,  ASSISTANT  SECRETARY 
OF  COMMERCE  AND  COMMISSIONER  OF  PATENTS  AND 
TRADEMARKS 

Mr.  Lehman.  Thank  you  very  much,  Mr.  Goodlatte. 

In  the  interest  of  efficiency  and  since  I  know  that  everyone  has 
a  lot  of  other  things  to  do  today — I  will  attempt  to  be  extremely 
brief,  particularly  in  view  of  the  fact  that  this  is  not  really  a  com- 
plicated subject.  I  would  like  to  begin  by  apologizing  for  the  Admin- 
istration getting  its  testimony  to  the  subcommittee  so  late.  How- 
ever, it  seems  as  if  we  were  all  on  the  same  wave  length  an3rway. 
In  fact,  if  Government  works  were  cop3n'ighted,  the  administra- 
tion's opening  statement  might  be  an  infringement  of  the  chair- 
man's opening  statement.  [Laughter.] 

So  it's  quite  clear  that  he  understands  what  the  issues  are,  and 
I  think  that  the  other  members  of  the  committee  do  too. 

I  think  you  will  find  unanimity  among  the  three  witnesses  that 
the  principal  reason  for  making  this  change  is  that  it  will  enable 
us  to  harmonize  with  the  European  Union,  our  largest  single  mar- 
ket for  copyrighted  works  outside  the  United  States.  In  fact,  in 
some  cases  it  might  even  be  larger  than  the  United  States. 

The  Register  of  Copyrights,  Ms.  Peters,  was  correct  when  she 
suggested  that  this  legislation  would  have  an  immediate  impact,  a 
very  near- term  impact,  on  works  between  1920  and  1940.  If  we  just 
think  a  little  bit  about  that  period  of  time,  that  was  a  period  in 
which  America's  copyright  industries  really  came  into  global  domi- 
nance. There  is  a  great  deal  of  material  that  will  have  great  com- 
mercial value  on  an  international  scale.  I  think  it  is  fair  to  say 
that,  with  the  passage  of  this  legislation,  there  will  be  considerable 
revenue  flowing  into  the  United  States  because  of  the  capacity  to 
continue  to  exploit  these  works. 

Now  that  does  have  an  impact  on  creativity  in  the  United  States 
because  much  commercial  creation — in  fact,  almost  all  commercial 
creation — is  funded  by  commercial  enterprises.  This  day  and  age  of 
the  information  superhighway,  and  so  on,  it  requires  considerable 
financial  resources  to  get  product  out  to  the  public,  particularly  on 
the  global  scale.  The  extension  of  the  copyright  term  will  provide 
commercial  copyright-based  industries  with  the  capacity  to  do  that. 

In  the  course  of  considering  this  legislation  within  the  adminis- 
tration, we  considered  a  number  of  very  specific  cases.  We  had 
some  experience  with  this  because  we  restored  cop3rright  protection 
to  some  works  that  had  fallen  into  the  public  domain  as  a  part  of 
a  NAFTA  implementing  legislation.  There  is  some  evidence,  that 
the  restoration  of  copyright  protection  under  the  NAFTA  legislation 
actually  encouraged  industry  to  make  available  to  the  public  in 
new  editions,  and  much  finer  editions,  works  which  otherwise 
would  have  remained  moldering  in  the  library.  So  on  balance,  we 
agree  that  there  is  a  great  deal  of  merit  in  this  legislation. 

I'd  just  like  to  say  a  word  about  the  concern  that  works  will  not 
go  into  the  public  domain.  Obviously,  that's  always  a  concern,  but 
there's  very  little  evidence  that  as  a  practical  matter  that  will  work 
a  hardship  on  Americans  or  American  industry  in  any  way.  In  fact, 


213 

there's  very  little  evidence,  for  example,  that  the  consumer  pays  a 
great  deal  less  for  published  works,  which  are  in  the  public  do- 
main, versus  published  works  which  are  copyrighted.  If  you  go  to 
a  bookstore,  the  prices  tend  to  be  comparable.  So  in  our  view,  there 
is  relatively  little  down  side  to  this  legislation  and  it  will  definitely 
provide  additional  revenue  for  one  of  America's  fastest  growing  in- 
dustries. 

I'd  just  like  to  make  one  final  point.  It  isn't  in  our  written  testi- 
mony, but  I  would  like  to  comment  on  the  Register's  concern  about 
section  303  and  the  term  extension  works  that  were  unpublished 
prior  to  1978.  I'd  just  like  to  remind  the  committee  that  prior  to 
1978  unpublished  works  enjoyed  common  law  copyright  protection 
and  virtually  have  perpetual  protection  and  never  would  have  gone 
into  the  public  domain.  So  the  additional  period  does  not  strike  me 
personally  as  being  an  extensive  additional  period  of  time.  There- 
fore, I  can  say  that  the  administration,  without  reservation,  sup- 
ports the  Chairman's  bill  in  its  entirety. 

[The  prepared  statement  of  Mr.  Lehman  follows:] 


214 

Prepared  Statement  of  Bruce  A.  Lehman,  Assistant  Secretary  of  Commerce 
AND  Commissioner  of  Patents  and  Trademarks 

Mr.  Chairman  and  Members  of  the  Subcommittee: 


Thank  you  for  this  opportimity  to  appear  before  the  Subcommittee  to  testify  on 
H.R.  989,  the  Copyright  Term  Extension  Act  of  1995.  The  bill  would  extend  the  term 
of  copyright  protection  in  all  copyrighted  works  that  have  not  fallen  into  the  public 
domain  by  twenty  years  in  an  effort  to  conform  U.S.  copyright  law  with  the 
copyright  laws  of  the  European  Union  Member  States. 

Since  the  first  Federal  copyright  law  in  1790,  the  term  of  copyright  protection  has 
steadily  increased.  In  1790,  copyright  protection  was  granted  for  an  initial  term  of  14 
years  from  the  date  of  publication  plus  an  additional  14-year  renewal  term  if  the 
author  was  still  living  when  the  original  14-year  term  expired.   In  1831,  the  length  of 
the  original  copyright  term  was  increased  to  28  years  (with  a  14-year  renewal  term). 
Then,  in  1909,  the  length  of  the  renewal  term  was  increased  to  28  years  (for  a  total 


215 


term  of  56  years).  Finally,  effective  in  1978,  the  length  of  the  copyright  term  was 
increased  so  that  copyright  protection  would  last  either  from  the  time  the  work  was 
created  until  fifty  years  after  the  author's  death  or,  where  the  length  of  copyright 
protection  is  not  measured  by  the  author's  life  under  the  1976  Copyright  Act,  75 
years  from  first  publication  or  100  years  from  creation,  whichever  is  shorter.   Now, 
with  the  introduction  of  H.R.  989  an  increase  in  the  term  of  copyright  protection  is 
being  considered  by  Congress  once  again. 

Each  time  the  term  of  protection  was  increased  in  the  past,  there  appeared  to  be 
ample  justification  for  increasing  the  term.  Although  today  the  need  to  increase  the 
copyright  term  is  not  as  pressing  as  it  was  in  1831, 1909  or  1978,  there  are  several 
reasons  that  a  copyright  term  increase  may  be  warranted.  Most  notably,  the  bill 
would  provide  U.S.  copyright  owners  benefits  in  other  countries  and  in 
international  fora.  Accordingly,  we  support  the  twenty-year  extension  of  copyright 
protection  as  proposed  in  H.R.  989. 

The  primary  reason  for  changing  the  copyright  term  by  twenty  years  would  be  to 
bring  U.S.  law  into  conformity  with  that  of  the  European  Union.   The  European 
Union  (EU)  passed  a  directive  that,  inter  alia,  requires  each  EU  Member  State  to 
provide  copyright  protection  for  a  term  of  life-plus-seventy  years  by  July  1, 1995.  A 
provision  in  the  EU  Directive  explicitly  requires  each  Member  State  to  implement 
"the  rule  of  the  shorter  term,"  which  prohibits  any  EU  Member  State  from 
protecting  a  work  originating  outside  the  EU  for  the  entire  life-plus-seventy  years 
term  uiUess  the  country  in  which  the  work  originated  also  provides  for  a  term  of 
life-plus-seventy  years.  Thus,  U.S.  copyright  owners  will  only  be  protected  for  a 
term  of  life-plus-fifty  years  in  the  EU,  while  their  EU  coxmterparts  will  be  protected 


216 


for  a  term  of  life-plus-seventy  years  in  the  EU  -  unless  the  U.S.  copyright  term  is 
extended. 

If  the  United  States  extends  the  copyright  term  to  life-plus-seventy  years  as  proposed 
in  H.R.  989,  the  EU  Member  States  would  be  required  to  protect  U.S.  works  for  the 
life-plus-seventy  years  term.  Thus,  an  extension  of  the  copyright  term  as  proposed 
in  H.R.  989  would  serve  the  dual  purpose  of  providing  U.S.  copyright  owners  with 
extended  protection  in  the  EU  as  well  as  in  the  Uiuted  States.  This  would  benefit 
the  copyright  owners  of  many  U.S.  works  by  allowing  them  to  exploit  their  works  in 
the  EU  and  the  United  States  for  an  additional  twenty  years  and  reap  the  rewards 
therefrom. 

For  many  other  U.S.  works  the  copjoight  owner  will  get  the  benefit  of  the  entire 
copyright  term  in  the  EU  regardless  of  whether  the  U.S.  copyright  term  is  increased. 
For  instance,  the  term  of  protection  in  the  EU  for  sound  recordings  under  the  EU 
Directive  is  50  years  from  publication  or  creation,  while  the  term  of  protection  in  the 
United  States  for  soimd  recordings  is  75  years  from  first  publication  or  100  years 
from  creation,  whichever  is  shorter.   As  the  term  of  protection  in  the  United  States 
for  soimd  recordings  is  already  greater  than  the  EU  grants  those  works  ujider  the 
Directive,  the  EU  Member  States  could  not  apply  the  rule  of  the  shorter  term  to 
sound  recordings  and  the  EU  Member  States  would  be  required  to  protect  U.S. 
soimd  recordings  for  the  entire  EU  term  of  50  years  from  publication  or  creation. 
Even  though  U.S.  sound  recording  producers  would  not  benefit  directly  in  the 
European  Union  from  a  copyright  term  exterision  as  proposed  in  H.R.  989,  sound 
recording  producers  would  still  benefit  in  the  Uruted  States  by  getting  an  additional 
twenty  years  in  which  to  exploit  their  sound  recordings  in  the  Uruted  States. 


217 


Extending  the  term  of  copyright  protection  by  twenty  years  may  also  benefit  the  U.S. 
economy  and,  in  particular,  the  U.S.  trade  balance.  Last  year,  the  U.S.  copj^ght 
industry  contributed  approximately  $40  bilhon  in  foreign  sales  to  the  U.S.  economy. 
Since  the  United  States  is  a  net  exporter  of  intellectual  property  products  to  the 
European  Uiuon  and  an  increase  in  the  U.S.  copyright  term  would  extend  the 
copyright  term  for  U.S.  works  in  the  European  Union,  an  additional  twenty  years  of 
protection  would  likely  increase  the  trade  balance  of  the  Uiuted  States  in  the  long- 
term. 

Having  established  that  extending  the  copyright  term  as  proposed  in  H.R.  989 
appears  to  offer  some  short  and  long-term  advantages  for  U.S.  copyright  interests,  it 
should  be  pointed  out  that  the  U.S.  copyright-based  industry  and  the  public  might 
benefit  even  more  if  the  Europecin  Uruon  eind  United  States  were  to  harmonize  our 
copyright  laws  in  other  areas  as  well.   There  are  numerous  differences  between  the 
U.S.  and  EU  copyright  laws  and  many  benefits  may  be  had  by  the  U.S.  copyright- 
based  industry  and  the  public  from  extending  the  copyright  term  as  part  of  a 
comprehensive  harmoiuzation  agreement  with  the  European  Union. 

Those  that  oppose  H.R.  989  suggest  that  the  public  will  be  harmed  by  a  copyright 
term  exterision.   These  individuals  suggest  that  works  will  be  cheaper  and  more 
widely  available  once  the  work  falls  into  the  public  domain  and  that  the  public  will 
be  deprived  of  these  benefits  for  an  additional  twenty  years  if  H.R.  989  is  enacted. 
This  contention  may  be  true  in  theory,  but  in  reality  it  may  have  little  significance. 

Once  a  work  falls  into  the  public  domain  there  is  no  guarantee  that  the  .work  will  be 
more  widely  available  or  cheaper.  In  fact,  there  is  ample  evidence  that  shows  that 
once  a  work  falls  into  the  public  domain  it  is  neither  cheaper  nor  more  widely 


218 


available  than  works  protected  by  copyright.  One  reason  quality  copies  of  public 
domain  works  are  not  as  widely  available  may  be  because  publishers  will  not 
publish  a  work  that  is  in  the  public  domain  for  fear  that  they  will  not  be  able  to 
recoup  their  investment  or  earn  enough  of  a  profit. 

There  is  also  no  evidence  that  once  a  work  falls  into  the  public  domain  that  the 
work  will  be  less  expensive  than  its  copyrighted  coimterpart.  In  fact,  the  public 
frequently  pays  the  same  for  works  in  the  public  domain  as  it  does  for  copjoighted 
works.   Thus,  the  public  may  benefit  little  from  a  shorter  term.  The  only  parties  that 
benefit  from  a  shorter  term  are  the  parties  who  exploit  public  domain  works.   An 
argument  could  be  made  that  these  individuals  are  not  deserving  of  the  commercial 
windfall  from  a  shorter  term  as  they  have  not  created  any  new  works  for  the 
public's  benefit.  If  anyone  is  deserving  it  is  the  copyright  owners  because  they  or 
their  assignors  are  the  ones  that  have  taken  the  time  and  effort  to  create  new  works 
for  the  public  to  enjoy. 

Opponents  of  H.R.  989  also  suggest  that  an  additional  twenty  years  of  protection  as 
proposed  will  not  be  sufficient  incentive  to  increase  the  number  of  works  created. 
They  contend  that  an  author  would  create  a  new  work  regardless  of  whether  the 
term  is  life-plus-seventy  years  or  life-plus-fifty  years.   We  believe  that  this 
contention  misses  the  point.   It  is  imlikely  that  an  author  would  create  a  new  work 
solely  because  the  term  was  life-plus-seventy  years  but  that  very  same  author  would 
not  create  a  new  work  because  the  term  would  be  only  life-plus-fifty  years.  This, 
however,  does  not  mean  that  the  potential  of  greater  rewards  provided  by  a 
cop3Tight  term  extension  would  not  be  an  incentive  for  some  authors  to  create  more 
new  works  for  the  public  to  enjoy. 


219 


Granting  a  copyright  term  extension  as  propose  in  H.R.  989  would  provide  copyright 
owners  with  an  additional  twenty  years  in  which  to  exploit  their  works.  The 
additional  twenty  years  will  enable  copyright  owners  to  increase  the  exposure  of 
their  works.  This  would  result  in  greater  financial  rewards  for  the  authors  of  the 
works,  which  will  in  turn,  encourage  these  authors  to  create  more  new  works  for 
the  public  to  enjoy. 

In  the  past.  Congress  has  foimd  it  necessary  to  change  the  copjrright  law  to  adjust  to 
economic,  social  jmd  technological  changes.   We  are  already  immersed  in  a 
technological  revolution  that  demands  we  take  a  close  look  at  our  copyright  regime 
and  once  again  alter  our  copyright  laws  to  keep  pace  with  these  technological 
changes.  As  we  speak,  we  are  at  the  dawn  of  the  digital  age  which  is  generating 
unprecedented  new  challenges  and  opportunities  for  the  copyright  world.  Congress 
and  the  Administration  are  presently  addressing  many  of  these  challenges.   For 
instance,  there  are  two  bills  pending  before  Congress  that  would  give  a  limited 
performance  right  in  sovmd  recordings  disseminated  by  digital  means. 

Similar  to  the  two  performance  rights  bills,  H.R.  989  also  recognizes  the  sigiuficance 
of  adequately  protecting  digital  works.  Granting  a  twenty-year  copyright  term 
extension  will  encourage  copyright  owners  to  restore  and  digitize  works  that  are 
about  to  fall  into  the  public  domain.  This  will  ensure  that  many  celebrated  works 
are  preserved  so  that  future  generations  can  enjoy  quality  copies  of  these  works. 
Without  a  copyright  term  extension,  copyright  owners  will  have  little  incentive  to 
restore  and  digitize  their  works.  If  many  of  these  works  are  not  restored,  they  might 
deteriorate  over  time  and  our  children  would  be  unable  to  enjoy  these  works  as  we 
have. 


220 


Increasing  the  copyright  term  may  also  help  to  reaffirm  the  role  of  the  United  States 
as  a  world  leader  in  copyright  protection.  By  taking  the  lead,  and  increasing 
protection  in  the  United  States,  we  encourage  our  trading  partners  to  follow  our 
lead  and  increase  the  term  of  protection.  If  other  coimtries  increase  their  term  of 
copyright  protection,  then  U.S.  copyright  owners  will  be  able  to  increase  the  rewards 
they  receive  for  their  works  by  exploiting  their  works  in  these  countries  for  a  longer 
period  of  time  and  therefore,  they  will  have  more  incentive  to  create  new  works  for 
the  public  to  enjoy. 

The  United  States  has  been  and  will  continue  to  be  a  leader  in  the  copyright  field. 
We  have  gained  this  reputation  for  leadership  in  this  area  by  providing  strong 
copyright  protection  and  by  making  well-informed,  justifiable  changes  to  our 
copyright  law  as  necessary  to  keep  pace  with  changes  in  society  and  technology.  As  a 
result  of  the  strong  protection  afforded  by  our  copyright  law,  the  U.S.  copyright 
industry  has  become  one  of  the  largest  and  fastest  growing  parts  of  the  U.S. 
economy.   The  U.S.  copyright  industry  contribute  more  to  the  U.S.  economy  than 
any  other  manufacturing  industry  and  comprises  almost  four  percent  of  the 
nation's  Gross  Domestic  Product.   Further,  the  annual  growth  rate  of  the  core 
copyright  industries  has  been  more  than  twice  the  growth  rate  of  the  whole 
economy.  This  success  resulted  only  after  making  changes  in  our  copyright  policies 
and  practices  after  careful  consideration  of  all  the  factors. 

After  careful  consideration  of  aU  the  factors,  the  Administration  supports  H.R.  989. 


221 

Mr.  MOORHEAD  [presiding].  Well,  thank  you  all  very  much. 

I'm  sorry  I  couldn't  be  here  for  all  of  your  testimony,  but  I've  got 
two  markups  going  at  the  same  time.  I  can't  be  every  place  at  once. 

Mr.  CONYERS.  Commissioner  Lehman  was  exceedingly  brief  this 
morning.  [Laughter.] 

I  wanted  you  to  know  that. 

Mr.  MooRHEAD.  Does  the  ranking  minority  member  of  the  full 
committee  have  questions  of  this  panel? 

Mr.  CONYERS.  I  don't.  I  was  going  to  ask  Ms.  Peters  to  give  us 
some  ideas  about  what  the  legislative  suggestions  she  made  would 
look  like,  but,  as  usual,  Bruce  Lehman's  talked  me  out  of  whether 
we  really  want  to  make  those  changes  or  not. 

You  know,  what — this  is  a  really  big  business  going  on  here,  and 
I'm  still  provincial  enough  to  wonder  about  the  little  guys  and  how 
we  can  continue  to  expand  their  interests  and  their  protection.  I 
mean,  even  though  we  are  proud  of  our  culture  and  support  all  the 
music  and  the  movies  and  the  record-playing,  and  so  forth,  some 
of  the  creators  have  received  short  shrift  in  the  past,  and  we're  try- 
ing to  bring  our  society  out  of  that. 

And  to  the  extent  that  while  we're  looking  at  these  measures 
that  we  can  keep  remembering  some  of  the  jazz  musicians  that 
were  overlooked  in  a  different  era  and  other  contributors,  that 
would  be  my  concern.  And  if  any  of  you  have  any  comments  about 
that,  I'd  be  delighted  to  entertain  that. 

Ms.  Peters.  I'd  like  to  respond  on  the  point  that  I  made,  which 
is  that  the  way  that  the  law  was  put  into  effect,  which  Mr.  Lehman 
pointed  out,  was  if  the  work  was  unpublished,  it  was  protected  per- 
petually, and  those  works  came  under  the  Federal  law  on  January 
1,  1978.  The  law  gave  them  a  25-year  term  of  protection,  and  if 
they  were  published  in  that  25  years,  25  years  more. 

What  I'm  talking  about  are  photographs,  letters,  manuscripts 
from  1780,  1790,  1820  which  have  not  been  published  in  the  17 
years  since  1978,  where  a  number  of  institutions  have  been  prepar- 
ing them  for  distribution  to  the  American  public.  We're  not  talking 
about  any  of  the  works  that  have  commercial  life  and  where  a  pub- 
lisher has  taken  them  and  published  them.  Where  those  works 
have  been  published,  we  support  the  additional  term.  So  we're  real- 
ly only  talking  about  the  works  that  are  sitting,  that  have  seen  no 
use,  and  in  the  17  years  since  the  passage  of  the  law  nobody  has 
published  them;  I  don't  think  that  much  music  is  in  this  category. 
I  think  it's  mostly  photographs  and  letters,  the  kinds  of  things  that 
historical  societies  basically  collect. 

Mr.  CoNYERS.  Commissioner,  does  that  accommodate  some  of 
your  reservations  on  that  point? 

Mr.  Lehman.  Well,  I  don't  think  that  this  is  an  earth- 
shatteringly  significant  subject,  but  I  wanted  to  point  out  to  the 
committee  that,  until  1978,  these  works,  even  if  they  may  have 
been  created  in  1820,  enjoyed  perpetual  copyright.  There  is  an  ar- 
gument that  one  of  the  incentives  to  disseminating  works  to  the 
public  is  to  provide  some  kind  of  exclusivity  to  a  publisher  who  is 
able  to  obtain  those  rights. 

So  I  think  there  are  two  sides  to  the  matter.  The  question  is: 
would  some  kind  of  eleemosynary  organization  be  encouraged  to 
disseminate  works  by  virtue  of  not  having  to  clear  any  rights,  and 


23-267    96-8 


222 

thus,  be  more  likely  to  make  the  work  available,  or  would  a  com- 
mercial organization,  who  might  be  spurred  by  rights  have  the  in- 
centive to  get  the  works  out? 

This  wasn't  just  something  we  considered  in  my  office;  every  sin- 
gle department  of  the  administration  with  any  involvement  in 
this — the  Justice  Department,  the  U.S.  Trade  Representative,  the 
Education  Department,  and  others — support  this  view.  On  balance, 
we  felt  that  the  commercial  incentive  of  the  additional  period  of 
time  warranted  supporting  the  legislation  above  and  beyond  even 
the  international  implications. 

Mr.  CONYERS.  Now  my  colleague,  Mr.  Sensenbrenner,  had  ob- 
served that  his  legislation  should  be  reported  out  or  given  the  same 
contemporary  consideration  that  the  measure  before  is,  and  it  was 
my  impression  that  all  of  that  work  was  in  negotiations  and  that 
the  negotiations  weren't  as  hopeless  as  they  were  referenced  this 
morning.  And  I  was  just  wondering,  does  anybody  have  any  update, 
any  late  flashes  that  we  could  be  apprised  of  here?  An3^hing  you 
can  tell  us 

Ms.  Peters.  Well,  the  only  part  that  I  know  is  that  negotiations 
are  ongoing  and  that  we  would  hope  to  see  them  continue.  Person- 
ally, on  similar  legislation  a  year  ago,  I  wrote  to  the  then  commit- 
tees basically  opposing  that  kind  of  legislation.  The  complaint 
seemed  to  be  with  business  practices  rather  than  the  way  that  the 
performing  rights  were  handling  the  rights  that  is  rather  than  with 
the  extent  of  the  rights.  I'm  somebody  who  feels  very  strongly  that 
narrowing  the  rights  with  respect — it's  called  section  110(5)— would 
violate  our  international  treaty  obligations  and  would  send  exactly 
the  wrong  signal  to  the  rest  of  the  world. 

Mr.  Lehman.  The  Register  has  put  her  finger  on  something 
that's  extremely  important.  We  already  have  enough  compulsory  li- 
censes in  U.S.  copyright  law,  and  enough  difficulties  attempting  to 
harmonize  on  a  global  basis  where  it  is  to  our  benefit  on  this  basis, 
I  think  that  Mr.  Sensenbrenner's  legislation  would  be  ill-advised. 
However,  I  don't  know  that  we've  cleared  that  position  in  the  ad- 
ministration. If  you  have  a  hearing  on  it,  I'm  sure  that  we  will  be 
able  to  offer  more  comprehensive  testimony. 

It's  important  to  understand  that  the  performing  arts  societies 
are — or  at  least  ASCAP  is  currently  covered  under  a  Justice  De- 
partment antitrust  decree  and  we  have  a  long  history  of  antitrust 
regulation.  Further,  as  Ms,  Peters  points  out,  the  appropriate  way 
to  deal  with  business  practices  that  are  alleged  to  be  anticompeti- 
tive, is  through  antitrust  law,  rather  than  mixing  competition  prin- 
ciples with  the  basic  copyright  law. 

Mr.  CONYERS.  Ambassador,  any  comments  on  the  above? 

Ms.  Barshefsky.  No  comments. 

Mr.  CONYERS.  OK.  Thank  you  very  much,  Mr.  Chairman. 

Mr.  MOORHEAD.  The  gentleman  from  Virginia,  Mr.  Goodlatte. 

Mr.  Goodlatte.  Thank  you,  Mr.  Chairman. 

I  don't  have  any  questions  at  this  time.  I  do  very  much  support 
this  legislation.  I  think  the  witnesses  have  all  very  articulately 
stated  the  merits  for  it. 

Thank  you. 

Mr.  MooRHEAD.  The  gentlelady  from  Colorado,  the  ranking  mi- 
nority member  of  the  subcommittee. 


223 


Mrs.  SCHROEDER.  Thank  you,  Mr.  Chairman.  I  apologize  for 
being  late,  but  being  one  of  the  24  targeted— or  28  targeted— on 
that  list,  we  had  a  press  conference  to  point  out  we  did  not  appre- 
ciate being  labeled.  ,     n^.    ^,    r^rjr 

So  I  would  put  my  opening  statement  m  the  record,  it  that  s  OK. 

[The  prepared  statement  of  Mrs.  Schroeder  follows:] 


224 

Prepared  Statement  of  Hon.  Patricia  Schroeder,  A  Representative  in 
Congress  From  the  State  of  Colorado 

I  thank  the  Chairman  for  scheduling  this  hearing.    As   a  cosponsor  of 
H.R.  989,  I  am  pleased  that  we  have  this  opportunity  to  hear  from  this 
distinguished  group  of  witnesses,  and  to  identify  any  issues  that  we  may  need  to 
address  in  terms  of  refining  this  bill  as  we  move  to  markup.    I  understand  that 
the  Chairman  is  looking  at  July  27  for  a  markup  of  this  bill,  and  I  would 
certainly  support  that,  and  hope  we  can  work  on  a  bipartisan  basis  to  move  this 
bill  forward. 

H.R.  989  represents  an  important  harmonization  ~  even  though  it  is  an 
imperfect  harmonization  ~  because  without  it,  U.S.  copyright  owners  will 
receive  less  protection  in  the  European  Union  than  their  E.U.  counterparts.    I 
think  it  is  very  important  that  we  make  sure  that  U.S.  copyright  owners  are  on 
an  equal  footing  in  Europe  with  E.U.  copyright  owners. 

The  evidence  is  clear  that  this  change  will  benefit  the  U.S.  trade  balance, 
and  I  think  that  is  a  significant  factor.    Passage  of  H.R.  989  will  also  signal  our 
commitment  to  provide  strong  protection  of  intellecmal  property,  both 
domestically  and  internationally.    It  is  critical  that  the  United  States  continue  to 
play  a  strong  leadership  role  internationally  in  the  development  and  enforcement 
of  intellectual  property  rights,  and  in  the  ongoing  effort  to  achieve 
harmonization  where  possible. 

At  the  same  time,  I  am  interested  in  hearing  about  aspects  of  the  bill  that 


225 


our  witnesses  believe  can  be  improved.    I  know  from  reviewing  the  written 
testimony,  for  example,  that  there  are  concerns  that  libraries,  educational 
institutions  and  archives  may  suffer  unintended  negative  impacts  in  their  efforts 
to  preserve  and  provide  access  to  older  copyrighted  works  for  educational  use.  I 
want  to  make  sure  that  we  look  carefully  at  those  issues  and  take  any  steps 
necessary  to  make  sure  that  those  concerns  are  addressed.   There  are  also 
concerns  about  works  for  which  the  time  period  for  exercising  termination 
under  section  304  has  already  lapsed,  and  about  unpublished  works  covered  by 
section  303. 

I  join  the  Chairman  in  welcoming  our  witnesses  today,  and  look  forward 
to  hearing  your  views,  and  in  particular,  your  suggestions  for  any  fine-tuning 
that  would  strengthen  this  bill  as  it  moves  forward. 


226 

Mrs.  SCHROEDER.  And  let  me  say,  Ms.  Peters,  it's  very  nice  to 
have  you  with  your  voice  back. 

Ms,  Peters.  With  my  voice  back.  Thank  you  very  much. 

Mrs.  SCHROEDER.  Absolutely. 

Commissioner  Lehman,  you  said  that  the  U.S.  copyright-based 
industry  and  the  public  could  benefit  even  more  if  we  harmonized 
our  copyright  laws  in  further  areas.  Would  you  like  to  provide  a  list 
for  the  record  or  could  you  tick  them  off,  or  what  other  additional 
harmonizations  should  we  consider? 

Mr.  Lehman.  I  think  in  previous  testimony  before  the  committee 
I've  indicated  some  of  the  areas.  For  instance,  at  the  present  time, 
the  United  States  has  a  law  that  governs  sound  recordings  that  is 
not  compatible  with  most  of  the  rest  of  the  world,  and  in  particular, 
the  European  Union.  Now  the  legislation  that  is  pending  before 
this  the  subcommittee,  that  I  believe  you  and  the  chairman  are 
sponsors  of,  does  move  us  in  that  direction,  but  it  only  moves  us 
part  of  the  way  there.  So  that  continues  to  be  a  problem  area. 

We  also  have  differences  in  rental  rights  between  the  United 
States  and  our  foreign  trading  partners.  At  this  point  I  wouldn't 
want  to  propose  changing  that,  but  we  should  understand  that  the 
international  negotiations  in  this  area  will  probably  only  bear  so 
many  differences  in  the  system.  If  we're  going  to  retain  anomalies 
in  U.S.  copyright  law  that  currently  exist,  to  the  extent  that  we  can 
find  areas  of  common  agreement  with  our  trading  partners,  it 
makes  it  easier  for  us  to  come  to  that  agreement  that  we  all  seek. 

One  of  the  areas  that  will  probably  be  coming  to  your  attention 
that  we  are  discussing  with  Europe  right  now,  is  the  protection  of 
noncopyrightable  database.  The  European  Commission  is  moving  to 
promulgate  a  new  directive  on  noncopyrightable  data  base.  Non- 
copyrightable  data  bases  are  very  important  collections  of  data, 
particularly  those  that  might  be  in  a  computer,  that  don't  meet  the 
test  of  authorship.  In  our  own  law  we  had  a  famous  Supreme  Court 
case,  the  Feist  case,  which  very  much  narrowed  the  scope  of  copy- 
right protection  for  such  extremely  valuable  commercial  works. 
These  works  will  be  very  valuable  on  the  global  information  super- 
highway. 

Europe  has  really  taken  the  lead  in  this  area,  I  think,  it  is  rare 
for  Europe  to  be  more  proactive  than  we  are  in  trying  to  address 
that  problem.  That's  an  area  I  would  look  to  where  we  might  wish 
to  take  a  look  at  their  directive  and  consider  harmonization  in  the 
same  way  we  do  here.  So  if  there  are  areas  where  we  can  move  in 
their  direction,  then  it  makes  it  easier  for  them  to  move  in  our  di- 
rection or  to  accommodate  some  of  the  remaining  anomalies  that 
will  be  very  hard  to  remove  in  U.S.  law  for  an  extended  period  of 
time. 

Mrs.  SCHROEDER.  Ms.  Peters,  you  said  you  had  concerns  for  li- 
braries and  educational  institutions  and  their  ability  to  carry  out 
preservation  and  access,  and  so  forth.  Do  you  have  some  language 
or  an3^hing  that  could  help  us  with  those  concerns? 

Ms.  Peters.  We  would  certainly  be — we'd  like  to  try  to  do  that 
for  you.  We're  really  not  talking  about  any  work  that  is  commer- 
cially available.  If  it's  commercially  available,  it's  not  an  issue  in 
a  library.  The  American  public  has  access  to  it.  And  the  older  the 
work  is,  the  more  difficult  it  is  to  secure  permission  to  use  it.  So 


227 

we  would  like  to  take  the  opportunity  to  try  to  give  you  some  very 
narrow  language  to  solve  some  of  those  problems,  to  work  with  the 
library  associations  to  see  that  their  needs  are  met. 

Mrs.  SCHROEDER.  We  would  really  appreciate  that. 

You  also  raised  some  questions  about  the  beneficiaries  of  the 
extra  20  years  and  who  they  should  be,  especially  where  there's  no 
existing  termination  right.  Do  you  or  Mr.  Lehman  have  anything 
you  want  to  say  about  that. 

Ms.  Peters.  I  just  noted  that  in  general  the  Constitution  talks 
about  authors,  and  authors  have  benefit,  and  that  in  1976  the  way 
that  we  handled  that  with  giving  the  author  the  right  to  terminate, 
and  that  for  some  of  the  works  that  right  has  passed,  and  that 
that's  a  question.  We're  not  actually  advocating  a  position  one  way 
or  the  other  because  we  actually  are  the  ones  who  record  the  termi- 
nation notices,  and  we  get  very,  very  small  numbers  compared  to 
the  works  at  large.  I  think  last  year  we  looked  at  what  we  got  as 
far  as  termination  notices,  and  it  was  something  like  549,  541  of 
which  covered  musical  compositions,  and  most  didn't  have  multiple 
titles.  So  when  you  look  at  that  small  percentage  in  relation  to  the 
work  as  a  whole,  I'm  not  really  sure  where  you  want  to  come  out, 
but  I  just  did  point  out  that  in  one  instance  there  is  no  way  for 
the  author  to  basically  recoup  the  extra  20  years,  where  all  the 
other  authors  have  that  possibility. 

Mrs.  Schroeder.  So  you  don't  have  any  solution  for  us,  but 
you're  just 

Ms.  Peters.  Well,  I'm  basically  saying  that 

Mrs.  Schroeder  [continuing].  Making  us  mindful  of  it? 

Ms.  Peters  [continuing].  Possibly  you  could  consider  another  ter- 
mination for  those  works,  but  I  think  that's  your  choice.  What  you 
really  have  is  every  other  author  having  the  ability  to  renegotiate 
for  the  extra  20  years,  and  there's  this  one  little  narrow  category 
where  that  opportunity  has  passed. 

Mrs.  Schroeder.  I  really  have  no  further  questions,  Mr.  Chair- 
man. I  just  want  to  thank  Ambassador  Barshefsky.  I  really  did  ap- 
preciate the  terrific  work  you  did  in  China.  I  know  the  committee 
was  very,  very  impressed  by  the  intellectual  property  agreement 
that  you  got,  and  you  kind  of  pulled  the  rabbit  out  of  the  hat.  So 
thank  you  very  much 

Ms.  Barshefsky.  Thank  you. 

Mrs.  Schroeder  [continuing].  For  your  hard  work. 

Thank  you,  Mr.  Chairman. 

Mr.  Moorhead.  The  gentleman  from  Ohio,  Mr.  Hoke. 

Mr.  Hoke.  Thanks,  Mr.  Chairman. 

There  are  always  winners  and  losers,  and  I'm  trying  to  figure  out 
who  the  winners  are  and  who  the  losers  are  with  this  legislation. 
Maybe  we  could  start  with  that. 

IVls.  Peters,  have  you  got  any  thoughts  on  it? 

Ms.  Peters.  Who  are  the  winners? 

Mr.  Hoke.  Well,  the  winners  are  fairly  obvious. 

Ms.  Peters.  OK. 

Mr.  Hoke.  But  go  ahead. 

Ms.  Peters.  The  winners  are  obvious.  It's  the  owner  of  works 
that  are  commercially  viable  and  where  there  are  new  uses,  espe- 
cially because  of  new  technology.  Authors  and  other  copyright  own- 


228 

ers  should  be  the  beneficiary  of  that,  and  so  they  v/in  the  extra  20 
years  and  they  certainly,  with  regard  to  Europe  and  other  coun- 
tries that  go  to  the  longer  term,  have  the  ability  to  recoup  that 
money  that  they're  really  entitled  to,  because  it's  their  works  that 
are  being  used. 

On  the  loser  side,  it's  less  clear.  I  believe  that  there's  a  public 
benefit  in  this  legislation.  However,  you  have  to  be  midful  of  the 
fact  that  it  is  very  difficult  to  find  copyright  owners  in  some  cases 
and  that  there  maybe  legitimate  and  beneficial  uses  of  those  works. 

In  my  statement  we  pointed  out  that  Canada,  Japan,  and  a  num- 
ber of  countries  have  specific  provisions  dealing  with  situations 
where  the  copyright  owner  cannot  be  located,  and  I  think  it's  time 
that  this  country  looked  at  this  issue. 

And  I  do  feel  very  strongly,  that  the  works  that  haven't  been 
published  in  the  17  years  since  the  effective  date  of  the  current 
copyright  law  should  enter  the  public  domain  in  2003.  The  likeli- 
hood of  their  being  published  seems  to  be  very  small  and  the  bene- 
fit to  be  gained  by  the  American  public  is  large.  I  could  give  a  list 
of  the  things  that  are  just  sitting  in  the  Library  of  Congress  that 
fall  into  this  category. 

Mr.  Hoke.  And  what  will  happen  exactly  with  those? 

Ms.  Peters.  The  Library  has  the  ability  to  make  them  available 
to  the  public.  We  could  either  make  them  widely  available  through 
the  Internet  or  could  put  them  into  class  rooms.  I  have  in  my  testi- 
mony an  example  where  we've  cleared  an  entire  collection  except 
the  letters,  but  the  letters  are  absolutely  critical  to  the  collection. 
One  of  the  collections  that  we're  going  to  be  working  on  next  year, 
but  with  the  help  of  the  family,  is  the  works  of  Leonard  Bernstein. 
The  family  would  like  to  see  the  collection  disseminate  to  the 
American  public.  We're  going  to  have  to  work  out  the  various  nec- 
essary clearances  of  rights. 

I  think  you're  going  to  hear  from  a  lot  of  people — and  we  cer- 
tainly did  that  many  people  use  the  public  domain  to  spur  new  cre- 
ations, and  that  much  of  the  material  that  authors  use  is  material 
that's  in  the  public  domain. 

Mr.  Hoke.  What  does  the  word  "use"  mean  there? 

Ms.  Peters.  "Use"  means  to  basically  take  a  work  and  create  a 
new  version  of  that  work.  I  was  reading  on  the  plane  the  other  day 
about  "Little  Women."  "Little  Women"  is  in  the  public  domain.  A 
key  point  of  the  article  was  that  now  there  are  many,  many  ver- 
sions of  "Little  Women,"  and  some  of  the  versions  actually  have 
Beth  living  because  Americans  don't  like  young  women  to  die. 
When  a  work  is  under  copyright,  you  can't  have  that  happen.  You 
have  to  have  permission  of  the  copyright  owner  to  make  a  new  ver- 
sion of  the  work.  Once  it's  in  the  public  domain,  people  can  take 
it  and  change  it.  So  to  the  extent  that  there  are  people  who  basi- 
cally create  new  derivative  works,  that 

Mr.  Hoke.  And  they  don't  have  to — but  they  don't  have  to  give 
an  attribution  to  the  derivation.  They  don't  have  to  make  a 

Ms.  Peters.  Well,  there's  actually  a  question  about  moral  rights 
that  I'm  not  going  to  get  into.  The  issue  is  whether  or  not  you  have 
to  give  credit  to  authors.  The  United  States  is  a  member  of  the 
Berne  Convention  which  requires  that  we  provide  a  right  of  attri- 
bution at  least  during  the  author's  life  and  50  years  after  that.  I 


229  V 

guess  Louisa  May  Alcott's  been  dead  longer  than  that.  So,  no,  they 
really  don't  have  to. 

But  I  think  there's  a  lot  of  documentary  films — I  know  that  the 
film  that  Ken  Burns  did  about  the  Civil  War,  where  a  lot  of  the 
footage  came  from  material  in  the  public  domain  that  was  in  the 
collections  in  the  Library — I'm  talking  about  those  kinds  of  works 
where  there  could  be  a  down  side  caused  by  the  extension  of  the 
copyright  term. 

Mr.  Hoke.  Has  anybody  calculated  on  the  up  side  to  the  holders 
of  the  copyright  what  the  additional  20  years  means  in  terms  of 
dollars? 

Ms.  Peters.  Somebody  in  their  testimony  has  that. 

Mr.  Lehman.  I  don't  think  we  have  a  figure  within  the  adminis- 
tration, but  I'm  sure  that  an  estimate  could  be  developed  if  you're 
willing  to  spend  taxpayer  money  or  other  resources  to  have  econo- 
mists work  on  it.  Nevertheless  I  think  we  can  take  judicial  notice 
of  the  fact  that  the  period  that  we're  talking  about  going  to  in  the 
fairly  near  future  is  a  period  in  which  U.S.  commercial  copyrighted 
works  exploded  onto  the  international  scene  in  a  very  big  way.  So 
there  is  very  little  question  that  very  large  sums  of  money  will  be 
flowing  into  the  U.S.  economy.  You  mention,  winners  and  losers? 
In  many  ways,  Congress  in  its  struggle  to  try  to  balance  the  books 
of  the  Federal  Government  is  going  to  be  a  winner  because,  with- 
out increasing  a  single  tax  rate,  there's  going  to  be  considerable  ad- 
ditional growth  in  the  GDP  as  a  result  of  this  bill.  Keep  in  mind 
that  copyright-based  industries  are  one  of  the  biggest  U.S.  indus- 
tries, I  think  about  the  second  biggest  exporting  industry  in  the 
United  States,  and  there  will  be  tax  paid  on  this  revenue  that's 
flowing  into  the  country. 

Mr.  Hoke.  How  much  are  we  talking  about? 

Ms.  Barshefsky.  If  I  may — if  I  may  comment,  sir 

Mr.  Hoke.  Please. 

Ms.  Barshefsky.  In  my  testimony  I've  indicated  that,  based  on 
estimates  from  ASCAP  with  respect  to  the  music  industry,  one  of 
the  music-collecting  societies,  that  works  that  would  otherwise 
have  not — that  some  $14  million  annually  in  revenue  would  be  re- 
ceived as  a  result  of  the  term  extension.  The  Motion  Picture  Asso- 
ciation estimates  that  in  the  earlier  years  additional  term  exten- 
sion would  result  in  relatively  minor  revenue  additions,  a  million 
dollars  by  the  year  2000.  But  as  you  go  out  to  2010,  2020,  the  num- 
bers rise  very  dramatically  to  between  $160  million  and  $200  mil- 
lion annually. 

Mr.  Hoke.  Well,  I  appreciate  that.  I  don't  know  how,  Mr.  Leh- 
man, you  can  extrapolate  that  as  having  some  sort  of  material  ef- 
fect on  our  GDP  that's  over  $6  trillion.  You're  talking  about  a  $14 
million  addition.  I'm  not — am  I  missing  something  here? 

Mr.  Lehman.  Well,  those  were  figures  from  two  industry  trade 
associations  from  ASCAP,  a  performing  arts  society,  which  has  an- 
nual revenues  of  perhaps,  a  half  a  billion  dollars,  and  from  the  mo- 
tion picture  industry,  which  is  a  big  industry,  and  has  revenues  of 
perhaps  $10  billion.  In  total,  I  think  the  copyright  industries  are 
well  over  $200  billion.  So  that's  why  I  say,  to  really  have  an  accu- 
rate study,  you  would  have  to  get  some  Ph.D.  economists  and  really 
do  an  extensive  analysis.  But  our  view  is  that  we  can  take  judicial 


230 

notice  of  the  fact  that  there  probably  will  be  considerable  additional 
revenue. 

Mr.  Hoke.  All  right.  Well,  considerable  additional  revenue, 
though,  is  we're — I  mean,  if  we  order  a — or  we  increase  it  by  an 
order  of  magnitude,  we  could  be  saying  maybe  $140  million  or  $200 
million.  I  mean,  this  is  not  a  material  impact  on  our  economy.  I 
just  want  to  make  that  point. 

The  last  thing  I  want  to  say  is  this,  or  I  really  want  to  ask  you: 
let's  get  to  the  other  side  of  this  question,  which  I  think  is  more 
interesting.  I  mean,  we  just  went  from  50  years  to  70  years.  We're 
talking  about  a  new — we're  talking  about  an  information  age. 
We're  talking  about  new  technology.  We're  talking  about  some 
works  that  will  have  lasting  impact.  I  mean,  maybe  the  works  of 
Gershwin  may  be  considered  to  be  like  the  works  of  Mozart  in  200 
years.  Why  70  years?  Why  not  forever?  Why  not  150  years? 

Ms.  Peters.  Actually,  that's  a  very  good  question.  There  cer- 
tainly are  proponents  of  perpetual  copyright:  We  heard  that  in  our 
proceeding  on  term  extension.  The  Songwriters  Guild  suggested  a 
perpetual  term.  However,  our  Constitution  says  limited  times,  but 
there  really  isn't  a  very  good  indication  on  what  limited  times  is. 

The  reason  why  you're  going  to  life-plus-70  today  is  because  Eu- 
rope has  gone  that  way,  and  I  think- 


Mr.  Hoke.  Well,  let's  follow  Europe;  they're 

Ms.  Peters.  No,  what  I'm  saying  is  even  if  you  look  at  the  Euro- 
pean Commuity,  it  largely  settled  on  a  term  of  life-plus-70  because 
Grermany  had  that  term.  That  was  the  longest  term  in  the  Euro- 
pean Community.  Had  Germany  not  been  there,  that  wouldn't  have 
been  what  was  chosen  as  the  community  term  of  protection. 

So  I  can't  answer  that  question.  I  don't  know  what  it  would  be. 
If  you  look  at  the  history  of  increasing  the  term  in  the  United 
States,  every  so  often  people  say  it  needs  to  be  increased  because — 
and  they  give  a  list  of  reasons,  and  it's  up  to  you  as  Congress  to 
decide  whether  or  not  it's  in  the  public  interest. 

Mr.  Hoke.  Thank  you  very  much,  Mr.  Chairman.  Thank  you  very 
much. 

Mr.  MOORHEAD.  The  gentleman  from  North  Carolina,  Mr.  Coble. 

Mr.  Coble.  Mr.  Chairman,  I  apologize  for  my  belated  arrival.  I 
had  two  or  three  other  places  to  be.  I  apologize  to  the  panel  as  well 
for  having  missed  your  testimony. 

This  may  have  already  been  asked,  but  I'm  just  curious  to  know, 
Commissioner,  what  you  and  your  colleagues  think  about  this. 
There  have  been  proposals  that,  in  lieu  of  the  author  or,  more  real- 
istically, his  or  her  heirs,  receiving  money  from  licenses  or  royalties 
earned  during  the  extra  20  years,  that  that  money  be  placed  in  a 
fund  for  the  promotion  of  arts  and  authors  in  general.  What  would 
be  you  all's  response  to  that? 

Mr.  Lehman.  The  administration  has  considered  that  issue  and 
has  concluded  that  we  do  not  support  that  approach  at  this  time. 

Mr.  Coble.  And  I  don't  mean  to  imply  that  I  do.  I  just  was  curi- 
ous to  know  what  you  all  had  to  say  about  that. 

Ms.  Peters.  I  would  just  speak,  on  behalf  of  the  Copyright  Of- 
fice. We  studied  Senator  Dodd's  bill,  which  was  similar  to  that.  He 
had  an  Arts  Endowment  Act  of  1994,  where  you'd  auction  off  copy- 
rights at  the  end  of  the  term.  There  was  also  a  bill  that  would  ere- 


231 

ate  a  public  trust.  In  general,  we  have  been  opposed  to  such  bills, 
especially  on  international  grounds.  One  of  the  things  that  you 
don't  want  to  do  is  place  support  for  the  arts  on  the  backs  of  au- 
thors and  other  copyright  owners.  Moreover,  it  wouldn't  be  fair  to 
only  fund  Americans  with  money  that  is  being  raised  from  works 
of  all  countries.  So  although  I  think  everybody's  in  support  of  the 
arts  and  wants  to  see  the  arts  adequately  funded,  you'd  have  to 
study  very  carefully  any  kind  of  a  proposal  that  would  use  either 
copyright  or  copyrighted  works  as  a  vehicle  to  do  that. 

Ms.  Barshefsky.  Sir,  if  I  may  add  that,  with  respect  to  our  copy- 
right policy  and  the  European  Union,  we've  consistently  opposed 
the  mandatory  allocation  of  funds  to  subsidize  domestic  cultural  ac- 
tivities. There's  a  great  concern  that,  were  the  United  States  to 
move  in  that  direction,  the  European  Union  and  other  trading  part- 
ners might  try  and  imitate  our  actions,  but  in  a  manner  even  less 
desirable  than  they  currently  have. 

Mr.  Coble.  Thank  you.  Thank  you,  Mr.  Chairman. 

Mr.  MOORHEAD.  The  gentleman  from  Pennsylvania,  do  you  have 
any  questions  you  wish  to  ask? 

Mr.  Gekas.  Yes,  where  are  we?  [Laughter.] 

That's  my  question  and  I'll  reserve  my  time. 

Mr.  MooRHEAD.  I've  been  told  that  a  number  of  our  early  motion 
pictures,  which  are  certainly  a  part  of  our  heritage  in  which  we 
have  been  trying,  through  various  pieces  of  legislation,  to  preserve 
at  least  the  best  of  them,  but  we've  been  told  that  those  that  are 
not  under  copyright  any  longer  are  rapidly  deteriorating  because 
there's  no  one  who  feels  the  responsibility  to  spend  money  on  them 
and  to  keep  them  and  care  for  them.  I  guess  that  happened  a  great 
deal  in  the  early  days  of  motion  pictures  when  they  didn't  cost  as 
much. 

Do  you  think  this  is  true  and  that  legislation  of  this  kind  will  be 
of  assistance  in  that  respect? 

Ms.  Peters.  I  can't — personally,  I  don't  know  whether  it's  true 
or  not.  I'm  aware  that  the  Library  of  Congress  which  has  one  of 
the  largest  film  collections  in  the  world,  is  dedicated  to  preserva- 
tion of  films.  Public  money  goes  to  preserve  those  films.  There's  a 
new  film  preservation  bill  which  would  provide  partial  funding;  the 
Government  would  be  funding  part,  but  the  rest  of  the  funding 
would  come  from  copyright  owners,  that  is,  the  studios. 

Film  preservation  is  critical  to  this  country s  cultural  heritage, 
and  there  are  a  number  of  ways  to  do  it.  However,  I  really  don't 
know  whether  or  not  having  the  work  in  the  public  domain  has  af- 
fected film  preservation  efforts. 

Mr.  MoORHEAD.  There's  a  limited  number  of  pictures,  motion  pic- 
tures, that  come  under  that  film  preservation.  Each  year  we  add 
a  few. 

Ms.  Peters.  Twenty-five.  I  think  you're  talking  about  the  Film 
Preservation  Board  adding  25  films  to  the  film  registry  each  year, 
but  there's  another  effort  to  basically  preserve  films  in  general  as 
part  of  our  cultural  heritage. 

Mr.  Lehman.  Mr.  Chairman,  the  very  situation  that  you  just  de- 
scribed was  one  of  the  things  that  the  administration  considered  in 
deciding  to  support  the  legislation.  It  was  persuasive  to  us,  because 
we  had  some  anecdotal  evidence  that  resulted  from  when  certain 


232 

works  were  brought  back  out  of  the  pubUc  domain  as  a  part  of  the 
NAFTA  agreement. 

I  think  that  there  is  an  evolving  consensus  in  U.S.  society  on  a 
bipartisan  basis  that  marketplace  solutions  are  preferable  to  Gov- 
ernment regulation  and  bootstrap  schemes  for  accomplishing  larger 
social  purposes.  To  the  extent  that  you  can  provide  an  economic  in- 
centive for  the  preservation  and  dissemination  of  works,  you're  on 
pretty  solid  ground,  and,  of  course,  that's  why  the  copyright  law 
and  intellectual  property  is  such  a  magnificent  thing. 

Getting  back  to  the  earlier  question  by,  I  believe,  Mr.  Hoke, 
about  when  should  copjright  expire,  this  is  an  evolved  law  but 
many  of  the  decisions  that  were  made  were  very  arbitrary.  One  of 
the  things  that  is  now  being  talked  about  on  an  international  basis 
in  connection  with  the  new  global  information  infrastructure  and 
the  digital  highway  and  has  been  floated  by  our  Japanese  trading 
partners,  is  the  idea  that  perhaps  there  ought  to  be  some  kind  of 
new  intellectual  property  right  specifically  for  people  who  take 
something  which  even  might  be  in  the  public  domain,  and  then  re- 
vive it,  digitize  it.  Obviously,  it  would  only  be  in  their  particular 
digitized  version  of  it,  but  give  them  some  incentive  for  taking 
something  and  adding  value  to  it,  so  that  it  can  be  made  available 
to  people.  This  is  something  that  is  being  talked  about.  Certainly, 
to  the  extent  that  copyright  provides  an  economic  incentive  for  peo- 
ple to  rerelease  works,  it's  an  advantage  of  this  bill. 

Mr.  MOORHEAD.  You  state  that  the  grant  of  copyright  term  ex- 
tension may  encourage  copyright  owners  to  restore  and  digitize 
works  that  are  about  to  fall  in  the  public  domain. 

Mr.  Lehman.  That's  correct. 

Mr.  MoORHEAD.  As  Chairman  of  the  administration's  Task  Force 
on  Information  Infrastructure,  do  you  believe  that  this  bill  would 
encourage  copyright  owners  to  add  to  the  content  which  will  be 
available  to  the  Internet? 

Mr.  Lehman.  Yes,  I  do. 

Mr.  MoORHEAD.  I  know  this  problem  of  money  has  been  dis- 
cussed here  several  times  and  the  questions  that  are  asked — I 
think  one  of  the  big  problems  that  we  run  into  here  is  the  fact  that 
copyrighted  works  in  other  parts  of  the  world  are  being  protected 
beyond  the  term  limits  of  our  copyright,  and,  yet,  our  own  people 
will  be  shortchanged  in  that  respect  as  far  as  use  in  other  parts 
of  the  world.  To  protect  those  has  to  be  totally  a  plus  for  our  coun- 
try and  no  negatives  whatsoever  because,  to  the  extent  that  it 
brings  in  additional  revenues,  additional  taxable  income,  and  so 
forth,  regardless  of  whether  it's  small  or  large,  will  be  a  plus  for 
us.  True? 

Ms.  Peters.  Can  I  just  say  one  thing? 

Mr.  MOORHEAD.  Yes. 

Ms.  Peters.  I  agree,  and  I  support  this  bill  wholeheartedly. 
There  is  a  cost,  though,  in  the  United  States.  By  adding  20  years 
in  the  United  States,  then  people  have  to  pay  in  the  United  States. 
So  although  I  support  it,  and  agree  that  we  would  be  getting  addi- 
tional revenue  from  the  foreign  countries  of  the  European  Union, 
there  is  an  impact  in  the  United  States  itself. 

Mr.  MOORHEAD.  Well,  I  have  no  further  questions.  I  don't — does 
any  member  of  the  panel  have  an  additional  question? 


233 

[No  response.] 

Mr.  MOORHEAD.  If  not,  we  want  to  thank  you  very  much. 

Ms.  Barshefsky.  Thank  you. 

Ms.  Peters.  Thank  you. 

Mr.  Lehman.  Thank  you,  Mr.  Chairman. 

Mr.  Moorhead.  Our  next  witness  will  be  Mr.  Quincy  Jones.  Over 
the  years  Mr.  Jones'  career  has  encompassed  the  roles  of  composer, 
record  producer,  artist,  film  producer,  arranger,  conductor,  instru- 
mentalist, TV  producer,  record  company  executive,  magazine  found- 
er, and  multimedia  entrepreneur.  He's  won  26  Grammy  Awards, 
the  Recording  Academy's  Trustee's  Award,  and  a  Grammy  Living 
Legend  Award.  He's  also  an  Emmy  winner  and  seven-time  Oscar 
nominee,  and  was  recently  honored  by  the  Academy  of  Motion  Pic- 
ture Arts  and  Sciences  with  their  John  Hersholt  Humanitarian 
Award.  He's  the  chief  executive  officer  of  Quincy  Jones  Entertain- 
ment. 

Welcome,  Mr.  Jones. 

Mr.  CONYERS.  Could  I,  Mr.  Chairman,  could  I  add  my  welcome 
to  Mr.  Jones,  our  witness? 

Mr.  Moorhead.  You  sure  can. 

Mr.  CONYERS.  As  one  who  may  have  known  him  as  long  as  any- 
body in  the  Congress — we  don't  like  to  get  into  the  numbers  thing, 
but  it's  a  real  pleasure  to  have  him  come  here.  It  was  at  some  ex- 
pense of  his  time  to  travel  across  the  country,  and  it  makes  me  feel 
very  good  because  I've  seen  him  in  every  part  of  our  society  except 
as  a  witness  in  Congress.  [Laughter.] 

I  don't  know  if  you've  been  doing  this  a  long  time  or  not,  but, 
Quincy,  you  are  probably  one  of  the  last  survivors  of  that  part  of 
the  jazz  era  called  "bop,"  and  reviewing  this  in  one  of  the  docu- 
ments about  you,  it  made  me  remember  that  you  tie — through  you 
have  come  all  the  contacts  with  almost  all  the  musicians — black, 
white,  Latin,  international,  local,  foreign,  domestic,  and  everything 
else.  And  whenever  I  used  to  hear  a  good  tune  that  I  didn't  know 
who  did  it,  after  about  three  or  four  times  of  finding  out  that  it  was 
you,  I  probably  attributed  tunes  to  you  that  maybe  you  didn't  do, 
but  it  always  fascinated  me,  that  great  variety  in  your  repertoire 
that  you  could  reach  to  it.  So  I'm  very,  very  happy  to  have  you 
here. 

And  thank  you  for  allowing  me  to  say  that,  Mr.  Chairman. 

Mr.  Jones.  Thank  you. 

Mr.  Moorhead.  And  we  felt  you  needed  one  more  thing  to  put 
in  your  bibliography.  So  that's  why  you  can  say  you're  a  witness 
at  a  congressional  hearing. 

Would  you  summarize  your  statement  in  10  minutes  or  less,  and 
then  we'll  all  ask  you  all  kinds  of  questions. 

STATEMENT  OF  QUINCY  JONES,  SONGWRITER  AND  MEMBER, 

AMSONG,  INC. 

Mr.  Jones.  OK.  Good  morning,  Chairman  Moorhead  and  mem- 
bers of  the  subcommittee.  My  name  is  Quincy  Jones  and  I'm  a 
songwriter,  among  other  things,  and  a  member  of  AmSong,  Inc. 

I'd  like  to  take  this  opportunity  also  to  sincerely  thank  all  of  you 
here  in  the  administration  for  your  support  for  this  bill.  It  means 
a  lot  to  us. 


234 

And  I'm  particularly  fascinated  with  Representative  Hoke's  state- 
ment. I  found  a  whole  new  view  of  things  there.  He  just  mentioned, 
why  not  forever?  I  never  thought  of  that  before.  That's  a  good  one. 

AmSong  is  a  not-for-profit  association  representing  a  vast  cross- 
section  of  America's  songwriting  community.  AmSong's  member- 
ship ranges  from  the  great  American  musical  estates  of  Irving  Ber- 
lin, Ira  and  George  Gershwin,  Rodgers  and  Hammerstein,  Hoagy 
Carmichael,  Johnny  Mercer,  Henry  Mancini,  to  America's  finest 
contemporary  songwriters,  such  as  Bob  Dylan,  Don  Henley,  Billy 
Joel,  Stephen  Sondheim,  Alan  Menken,  Dave  Brubeck,  and  Lionel 
Richie,  just  to  name  a  few. 

AmSong  is  dedicated  to  the  protection  of  American  intellectual 
property.  And  of  paramount  concern  to  AmSong's  membership,  and 
one  of  the  reasons  that  I,  myself,  became  a  member  of  AmSong,  is 
to  ensure  that  this  country  provides  copyright  protection  for  its  citi- 
zens' creations  for  a  fair  and  reasonable  period  of  time. 

Several  members  of  AmSong  who  are  unable  to  testify  this  morn- 
ing have  prepared  statements  in  support  of  H.R.  989,  and  I'll  be 
placing — we'll  be  placing  into  the  record  personal  statements  by  a 
number  of  AmSong  members,  including  Bob  Dylan  and,  just  most 
recently,  Don  Henley,  Stephen  Sondheim,  Alan  Menken,  Ellen  Don- 
aldson, and  Mrs.  Henry  Mancini. 

Mr.  MOORHEAD.  Are  you  offering  those  statements  for  the  record 
at  this  time? 

Mr.  Jones.  Yes. 

Mr.  MooRHEAD.  Without  objection,  they  will  be  placed  in  the 
record. 

Mr.  Jones.  Two  weeks  ago,  on  July  1,  1995,  the  countries  mak- 
ing up  the  European  Union  implemented  a  uniform  term  of  copy- 
right which  is  that  of  the  life  of  the  author  plus  70  years,  and  as 
part  of  that  process  these  countries  have  invoked  the  rule  of  the 
shorter  term  when  determining  the  extent  of  copyright  protection. 
This  means  that  the  works  created  outside  of  the  countries  that  are 
a  part  of  the  European  Union  will  be  protected  for  the  shorter  of 
life-plus-70  years  or  the  term  in  effect  in  the  country  when  the 
work  was  created.  This  means  that  under  the  current  laws  songs 
such  as  "In  the  Heat  of  the  Night,"  "In  the  Eyes  of  Love,"  both  of 
which  I  wrote  in  1967,  will  go  out  of  copyright  in  2042,  while  a 
song  written  in  England,  France,  or  Germany  in  the  same  year  by 
an  author  of  the  same  age  as  myself,  49 — [laughter] — will  remain 
protected  until  70  years  after  his  death.  If  the  European  author 
dies  at  the  age  of  85  in  the  year  2018,  his  work  will  continue  to 
be  protected  until  2088.  That's  a  full  46  years  of  protection  beyond 
that  which  is  provided  for  my  work  in  the  United  States.  And  it's 
ironic  that  this  great  country,  which  has  spawned  cultural  treas- 
ures that  are  unsurpassed  in  the  world,  should  deny  the  creators 
of  these  treasures  protections  commensurate  with  those  offered  in 
virtually  every  democratic  nation  in  the  world. 

The  intent  of  our  copyright  laws  is  to  encourage  creativity  by 
guaranteeing  the  protection  for  the  life  of  the  creator  plus  two  gen- 
erations of  his  or  her  successors.  My  own  situation  illustrates  all 
too  clearly  how  this  intent  is  not  currently  being  satisfied.  I  began 
writing  songs  as  a  young  man  back  in  1948.  If  I'm  49,  I  have  to 
change  that.  [Laughter.] 


235 

Like  so  many  people  today,  I've  been  blessed  with  children  later 
in  my  life — I  have  a  2-year-old — indeed,  more  than  45  years  after 
I  published  my  first  song.  And  I  believe  that  my  children  are  enti- 
tled to  the  same  rights  with  respect  to  my  songs  as  the  children 
of  yesteryear  born  to  parents  in  their  twenties.  Today  people  have 
a  greater  life  expectancy  and  they  begin  families  in  their  thirties 
and  forties,  and  such  societal  changes  necessitate  a  revision  of  our 
current  laws. 

The  alternative  to  copyright  protection  is,  of  course,  that  works 
will  fall  into  the  public  domain.  While  the  term  "public  domain"  im- 
plies that  the  ultimate  public,  the  consumer,  will  have  free  and 
easy  access  to  creative  works,  this  is  really  not  the  case.  The  price 
of  a  quality  compact  disk  recording  of  Beethoven  is  no  less  expen- 
sive than  the  price  of  the  latest  Pearl  Jam  LP.  This  is  Leo  Tolstoy; 
this  is  John  Grisham.  This  book  costs  more  than  John  Grisham, 
and  we  know  how  long  Tolstoy's  been  around.  He  was  influenced 
by  Alexander  Pushkin  years  ago,  19th  century.  [Laughter.] 

The  record  company  that  manufactures  the  CD  does  not  have  to 
pay  royalties  to  the  Beethoven  estate,  and  these  cost  savings  are 
not  passed  on  to  the  consumer.  Beethoven's  "Violin  Concerto"  costs 
exactly  the  same  as  "Garth  Brooks'  Greatest  Hits."  The  book  pub- 
lisher does  not  need  to  pay  royalties  to  the  Leo  Tolstoy  estate.  And, 
again,  this  is  not  reflected  in  the  cost  of  the  book  to  the  public. 

My  songs  are  my  legacy  to  my  children.  Because  my  pre- 1978 
works,  which  represent  at  least  40  percent  of  my  catalog,  are  only 
protected  for  a  fixed  term  of  75  years  from  registration,  my  catalog 
will  begin  to  fall  into  the  public  domain  when  my  youngest  child 
is  only  30  years  old.  And  without  an  extension  of  the  current  copy- 
right period,  my  children,  my  most  immediate  successors,  will  be 
deprived  of  their  legacy  from  me  while  they're  still  young  adults. 
And  I  have  no  desire  at  all  to  see  my  children  be  denied  that  which 
I  have  intended  for  them. 

Fortunately,  I  have  written  well  over  400  songs  in  my  lifetime, 
but  we  must  not  forget  that  there  are  many  songwriters,  musi- 
cians, particularly  blues  and  jazz  musicians,  who  support  them- 
selves entirely  and  their  families  on  the  royalties  earned  from  the 
three  or  four  songs  that  they  composed  that  may  have  become  a 
hit.  An  extended  term  of  copyright  will  make  an  acute  difference 
in  the  quality  of  life  for  these  artists. 

An  extension  in  the  term  of  copyright  would  also  benefit  the  fam- 
ilies of  writers,  great  songwriters,  such  as  Duke  Ellington, 
Theloneous  Monk,  Muddy  Waters,  and  Willy  Dixon,  who  early  in 
their  careers  were  often  required  to  enter  into  agreements  relin- 
quishing ownership  of  their  works,  and  I've  seen  this  happen  on 
many  occasions.  The  20-year  term  extension  would  give  their  fami- 
lies some  of  the  benefits  of  ownership  that  they  may  have  lost  in 
the  first  50  years  of  their  copyright,  way  past  the  popularity  of  the 
song. 

Just  as  important  to  remember  is  the  sad  reality  that,  once 
works  fall  into  the  public  domain,  the  families  of  the  creators  have 
no  incentive  to  maintains  the  works  in  a  format  that  is  useful  to 
the  public.  Most  of  the  estates  represented  by  AmSong  maintain 
extensive  archives  that  are  not  only  sources  of  information  for 
scholars,  but  also  serve  as  cultural  resource  centers  for  the  public, 


236 

anxious  to  perform  a  special  piano  concerto  by  George  Gershwin  or 
an  orchestral  arrangement  by  Leonard  Bernstein.  It  is  the  public 
who  will  wind  up  losing  if  an  unreasonably  short  copyright  term 
puts  the  archives  of  these  master  songwriters  out  of  business. 

And,  finally,  compelling  economic  factors  mandate  an  extension 
of  our  copyright  laws.  America's  intellectual  property  is  this  coun- 
try's second  largest  export,  and  it  also  provides  a  significant  reve- 
nue base  at  home.  Our  country's  culture  is  universally  popular.  I've 
seen  it  all  over  the  world  myself  personally.  It  is  heard,  seen,  per- 
formed, and  enjoyed  everywhere  throughout  the  world. 

In  light  of  the  recent  European  Union  action,  copyright  term  ex- 
tension in  the  United  States  has  become  an  essential  element  in 
safeguarding  our  national  economic  security.  And,  moreover,  every 
year  more  and  more  works  are  falling  into  the  public  domain  while 
they're  still  commercially  viable.  This  not  only  deprives  the  owners 
of  the  works  and  their  families  of  the  benefits  of  income,  but  it  di- 
minishes the  flowback  of  taxable  revenues  generated  from  overseas 
sales. 

Under  the  existing  cop3nright  laws,  Americans  and  Europeans  are 
required  to  pay  for  every  use  of  Revel's  "Bolero,"  while  neither 
Americans  nor  Europeans  are  required  to  pay  when  using  W.C. 
Hanle/s  "St.  Louis  Blues,"  written  in  1914.  It's  kind  of  difficult  for 
me  to  comprehend  this  logic. 

We  must  extend  the  term  of  the  copyright  in  the  United  States 
if  we  are  to  continue  to  reap  the  economic  benefits  of  our  intellec- 
tual property  in  the  world  and  domestic  marketplaces.  And  for  all 
of  the  foregoing  reasons,  it  is  imperative  that  we  extend  the  term 
of  copyright  in  the  United  States  by  20  years. 

I  commend  you.  Chairman  Moorhead,  for  introducing  H.R.  989, 
the  Copyright  Term  Extension  Act  of  1995.  I  urge  each  and  every 
member  of  the  subcommittee  and  every  Member  of  Congress  to 
support  this  bill  and  vote  H.R.  989  into  law  this  year. 

And  I  thank  you  for  your  time. 

[The  prepared  statements  of  Mr.  Jones,  Mr.  Dylan,  Mr.  Henley, 
Mr.  Menken,  Mr.  Sondheim,  Mrs.  Mancini,  Ms.  Donaldson,  Mr. 
Schoenberg,  Ms.  Durham,  Ms.  Miller,  and  Ms.  Barrett  follow:] 


237 

Prepared  Statement  of  Quincy  Jones,  Songwriter  and  Member  of  AmSong, 

Inc. 

Good  morning,  Chairman  Moorhead  and  members  of  the  subcommittee.  My  name  is 
Quincy  Jones,  and  I  am  a  songwiiter  and  member  of  AiuSong,  Inc. 

AmSong  is  a  not-for-profit  association  representing  a  vast  cross-section  of  America's 
songwriting  community.  .■\mSong's  membership  ranges  from  the  great  American  musical 
estates  of  Irving  Berlin,  Ira  and  George  Gershwin,  Rodgers  and  Haramerstein,  Hoagy 
Carmichael,  Johnny  Mercer  and  Henry  Mancini,  lo  .America's  finest  contemporary 
songuTiters  such  as  Bob  Dylan,  Don  Henley,  Billy  Joel,  Stephen  Sondheim,  Alan  Menken, 
Dave  Brubeck  and  Lionel  Richie,  to  name  a  few. 

.AmSong  is  dedicated  to  the  protection  of  American  intellectual  property.  Of 
paramount  concern  lo  .AmSong's  membership,  and  one  of  the  reasons  that  I  myself  became 
a  member  of  AmSong,  is  to  insure  that  this  countw  provides  copyright  protection  for  its 
citizens'  creations  for  a  fair  and  reasonable  period  of  time.  Several  members  of  AmSong, 
who  arc  unable  to  testify-  this  morning,  have  prepared  statements  in  support  of  H.R.  989.  I 
will  be  placing  into  the  record,  personal  statements  by  a  number  of  .\mSong  members, 
including  Bob  Dylan.  Stephen  Sondheim,  Alan  Menken,  Blen  Donaldson,  and  Mrs.  Heniy 
Mancini. 

Two  weeks  ago  on  July  1,  1995  the  countries  making  up  the  European  Union 
implemented  a  uniform  term  of  copyright  which  is  that  of  the  life  of  the  author  plus  70 
years.  .As  part  of  that  process,  these  countries  have  invoked  the  "rule  of  the  shorter  term" 
when  determining  the  extent  of  copyright  protection.  I'his  means  that  the  works  created 
outside  of  the  countries  that  are  a  part  of  the  European  Union  will  be  protected  for  the 
shorter  of  life  plus  70  years  or  the  term  in  effect  in  the  country  where  the  work  was  created. 
This  means  that  under  the  current  laws,  songs  such  as  "In  The  Heat  Of  The  Night"  and 
"The  Lyes  Of  Love"  both  of  which  1  wrote  in  1967  will  go  out  of  copyright  in  vq42,  while  a 
song  written  in  England,  France,  or  Germany  in  the  same  year!  by  an  author  the  same  age 
as  myself,  will  remain  protected  until  70  years  after  his  death.  If  the  European  author  dies 
at  the  age  of  85  iii  the  year  2018,  his  work  will  contiime  to  be  protected  until  2088.  That  is 
a  full  46  years  of  protection  beyond  that  which  is  provided  for  my  work  in  the  United 


238 


States.  It  is  ironic  that  this  great  country  that  has  spawned  cultural  treasures  unsurpassed 
in  the  world  should  deny  the  creators  of  these  treasures,  protections  commensurate  with 
those  offered  in  virtually  every  democratic  nation  in  the  world.  The  intent  of  our  copyright 
laws  is  to  encourage  creativity  by  guaranteeing  the  protection  for  the  life  of  the  creator  plus 
two  generations  of  his  or  her  successors.  My  own  situation  illustrates  all  too  clearly  how 
this  intent  is  not  currently  being  satisfiecL  I  began  writing  songs  as  a  young  man  back  in 
1948.  Like  so  many  people  today,  I  have  been  blessed  with  children  later  in  my  life— 
indeed  more  than  45  years  after  1  published  my  fiirst  song.  1  believe  that  my  children  are 
entitled  to  the  same  rights  with  respect  to  my  songs  as  the  children  of  yesteryear  bom  to 
parents  in  their  twenties.  Today  people  have  a  greater  life-expectancy  and  begin  families 
in  their  thirties  and  forties.  Such  societal  changes  necessitate  a  revision  of  our  current 
laws. 

The  alternative  to  copyright  protection  is,  of  course,  that  works  will  fall  into  the 
public  domain.  While  the  term  "public  domain"  implies  that  the  ultimate  public,  the 
consumer,  wiU  have  free  and  easy  access  to  creative  works,  this  is  really  not  the  case.  The 
price  of  a  quality  compact  disc  recording  of  Beethoven  is  no  less  expensive  than  the  price  of 
a  Pearl  Jam  CD.  The  record  company  that  manufactures  the  CD  does  not  have  to  pay 
royalties  to  the  Beethoven  estate  and  these  cost  savings  are  not  passed  on  to  the  consumer. 
Similarly,  the  price  of  a  quality  paperback  by  Henry  James  is  no  less  than  the  price  of  the 
latest  John  Grisham  release  The  book  publisher  does  not  need  to  pay  royalties  to  the 
Henry  James  estate,  and  again  this  is  not  reflected  in  the  cost  of  the  book  to  the  public. 

My  songs  are  my  legacy  to  my  children.  Because  my  pre- 1978  works,  which  represent 
at  least  40%  of  my  catalogue,  are  only  protected  for  a  fixed  term  of  75  years  from 
registration,  my  catalogue  will  begin  to  fall  into  the  public  domain  when  my  youngest 
child  is  only  30  years  old.  Without  an  extension  of  the  current  copyright  period,  my 
children  -  my  most  immediate  successors  -  will  be  deprived  of  their  legacy  from  me  while 
they  are  still  young  adults.  I  have  no  desire  to  see  my  children  be  denied  that  which  1 
intended  for  them. 

Fortunately,  I  have  written  well  over  400  songs  in  my  lifetime.  But  we  must  not  forget 
that   there  are  many  songwriter/ musicians,   particularly    blues  and   jazz   musicians    who 
support  themselves  and  their  families  on  the  royalties  earned  from  the  three  or  four  songs 
that  they  composed.  An  extended  term  of  copyright  will  make  an  acute  difference  in  the 
quality  of  life  for  these  artists.   An  extension  in  the  term  of  copyright  would  also  benefit 

-2- 


239 


the  families  of  songwriters  such  as  Muddy  Waters,  Willie  Dixon,  and  Duke  Ellington,  who 
early  in  their  careers,  were  often  required  to  enter  into  agreements  relinquishing  ownership 
of  their  works.  The  20  year  term  extension  would  give  their  famiUes  some  of  the  benefits  of 
ownership  that  they  may  have  lost  in  the  first  56  years  of  copyright. 

Just  as  important  to  remember,  is  the  sad  reality  that  once  works  fall  into  the  public 
domain,  the  families  of  the  creators  have  no  incentive  to  maintain  the  works  in  a  format 
that  is  useful  to  the  public.  Most  of  the  estates  represented  by  AmSong  maintain  ev:tensi\"e 
archives  that  are  not  only  sources  of  information  for  scholars,  but  also  serve  as  cuUural 
resource  centers  for  the  public,  anxious  to  perform  a  special  piano  concerto  by  Geoige 
Gershwin  or  an  orchestral  arrangement  by  Leonard  Bernstein.  It  is  the  public  who  will 
wind  up  losing  if  an  unreasonably  short  copyright  term  puts  the  archives  of  these  master 
songwriters  out  of  business. 

FinaUy,  compelling  economic  factors  mandate  an  extension  of  our  copyright  laws. 
.American  intellectual  property  is  this  country's  second  largest  export  and  it  also  provides  a 
significant  revenue  base  at  home.  Our  country's  culture  is  universally  popular;  it  is  heard, 
seen,  performed,  and  enjoyed  everywhere  throughout  the  world.  In  light  of  the  recent 
European  Union  action,  copyright  term  extension  in  the  United  States  has  become  an 
essential  element  in  safeguarding  our  national  economic  security.  Moreover,  every  year 
more  and  more  works  are  falling  into  the  public  domain  while  they  are  still  commercially 
viable.  This  not  only  deprives  the  owner  of  the  works  and  their  families  the  benefits  of 
income,  but  it  diminishes  the  flowback  of  taxable  revenues  generated  from  overseas  sales. 
We  must  extend  the  term  of  copyright  in  the  United  States  if  we  are  to  continue  to  reap  the 
economic  benefits  of  our  intellectual  property  in  the  world  and  domestic  marketplaces. 

For  all  of  the  foregoing  reasons,  it  is  imperative  that  we  extend  the  term  of  copyright 
in  the  United  States  by  20  years.  1  commend  you.  Chairman  Moorhead,  for  introducing 
H.R.  989,  the  Copyright  Term  Extension  Act  of  1995.  I  .urge  each  member  of  this 
SubcomiHittee,  pnd  every  gjemba"  of  Congress  to  suppon  this  bill  and  vote  H.R.  989  into 


240 

[The  prepared  statement  of  Mr.  Dylan  follows:] 
Prepared  Statement  of  Bob  Dylan 


My  name  is  Bob  Dylan  and  song  writing  is  my  profession.  Allow  me  to  express  myself  concerning 
the  Copyright  Term  Extension  Act  of  1995. 

My  first  song  was  published  by  Witmark  Music  in  1961.  My  status  at  the  time  was  20  years  old, 
unmarried,  with  no  children.  My  situation  changed  to  include  a  wife  and  family  and  the  writing  of 
many  more  songs. 

The  impression  given  to  me  was  that  a  composer's  songs  would  remain  in  his  or  her  family  and 
that  they  would,  one  day,  be  the  property  of  the  children  and  their  children  after  them.  It  never 
occurred  to  me  that  these  songs  would  fall  into  the  pubic  domain  while  my  children  are  still  in  the 
prime  of  their  lives,  and  while  my  grandchildren  are  still  teenagers  or  young  adults.  Yet  this  is 
exactly  what  will  occur  if  H.R.989  is  not  enacted. 

Our  current  term  of  copyright  is  a  flat  75  years  for  works  written  prior  to  1978,  and  life  plus  50 
years  for  works  written  on  or  after  January  1,  1978.  This  term  is  significantly  shorter  than  the 
term  of  copyright  adopted  by  the  fifteen  member  nations  of  the  European  Union,  the  countries 
making  up  the  European  Economic  Area  and  the  numerous  other  countries  which  will  be 
changing  their  copyright  laws  to  provide  for  a  term  of  life  of  the  author  plus  70  years. 

The  discrepancy  between  the  term  of  protection  offered  to  American  creators  and  the  term  of 
protection  offered  to  European  creators  is  particularly  striking.  European  audiences  have  always 
enthusiastically  welcomed  American  popular  musicians.  They  buy  our  records,  they  play  our 
music  over  the  airways,  and  they  attend  our  concerts,  often  in  sell-out  crowds.  And  yet,  due  to 
the  apphcation  of  the  rule  of  the  shorter  term,  our  works  will  cease  to  be  protected  long  before 
European  works  of  comparable  age.  The  enactment  of  H.R.989  will  go  a  long  way  towards 
equalizing  the  playing  field  for  American  and  European  works  and  rectifying  the  injustice  to 
American  creators. 

It  is  important  for  the  congress  to  enact  H.R.989,  and  its  companion  bill.  S.483  this  year. 


241 

[The  prepared  statement  of  Mr.  Henley  follows:] 


Prepared  Statement  of  Don  Henley 

Dear  Chairman  Moorhead,  Members  of  the  Subcommittee  on  Intellectual  Property, 
and  distinguished  members  of  Congress; 

My  name  is  Don  Henley.   I  am  a  songwriter,  music  publisher  and  recording  artist. 
I  appreciate  the  opportunity  to  express  my  support  for  H.R.  989,  the  Copyright  Term 
Extension  Act  of  1995. 

You  have  heard  many  compelling  arguments  for  the  exter^ion  of  the  term  of 
copyright  protection  for  American  intellectual  property  to  match  that  of  the 
European  Union  Directive  of  life  plus  70  years.  The  members  of  the  United  States 
creative  community  have  testified  that  this  is  a  trade  matter,  an  economic  issue  of 
vital  importance  to  the  American  participation  in  the  global  marketplace.  You've 
been  told  that  our  current  laws  create  what  is  essentially  a  twenty-year  free  ride  to 
the  European  Union  —  they  can  use  and  abuse  o\ir  works  for  free,  while  we  have  to 
pay  for  the  use  of  theirs.   You've  also  heard  about  the  questionable  real  value  to  the 
people  of  public  domain  material.  It  is  all  this,  but  it  is  very  much  more. 

On  a  daily  basis,  I  wear  many  hats.  I  care  passionately  about  the  preservation  of  our 
dwindling  wilderness  areas,  and  I  have  devoted  a  great  portion  of  my  life  and  my 
life's  work  to  make  sure  that  a  respect  for  the  land  and  the  protection  of  our 
environment  is  a  part  of  the  legacy  we  leave  our  children.   We  have  found  that  in 
order  to  foster  this  respject  and  protection,  it  has  been  necessary  to  enact  laws.  Many 
of  you  are  acquainted  with  me  in  this  role. 

I  am,  however,  first  and  foremost,  an  artisan,  except  my  tools  are  words  and 
melodies  instead  of  brushes  and  canvas.  I  cut,  shape,  refine,  and  position  each  \/ord 
and  each  note  until  I  have  crafted  a  song  that  I  believe  is  true.   My  songs  are  an 
expression  of  who  I  am  and  what  I  stand  for,  and  the  laws  which  govern  the  results 
of  my  endeavors  demand  that  people  respect  my  work.  The  copyright  law  provides 
me  with  the  right  to  protect  my  work  from  those  who  would  otherwise  compromise 
its  integrity,  who  would  exploit,  abuse  and  mutilate  my  art.  I  do  not  allow  my  songs 
to  be  used  in  conjunction  with  advertising  commercials,  and  I  am  extremely 
selective  about  other  ancillary  uses  of  my  music  in  films  and  other  projects.   The 
law  g;ives  me  this  right,  but  or\ly  for  a  limited  time. 

No  one  would  question  my  right  to  prevent  someone  from  painting  graffiti  on  my 
house  or  from  stealing  its  contents.  No  one  would  question  my  right  to  benefit 
from  its  value  or  to  ensure  that  my  heirs  benefit  from  its  value.  And  if  I  were  to 


242 


Page  Two  July  7, 1995 


design  and  build  a  house,  instead  of  a  song,  I  could  own  this  house  and  would  have 
the  right  to  protect  it  throughout  my  lifetime.  I  woiild  be  able  to  pass  this  along  to 
my  children,  and  it  would  be  theirs  to  pass  to  their  children  and  so  forth. 

But  I  don't  make  houses  or  other  tangible  property.  I  just  make  songs,  and  they  can 
only  belong  to  me  and  my  family  for  a  limited  time.  I  can't  erect  a  fence  around  my 
kind  of  property  to  defend  against  trespassers.  As  a  creator  of  intellectual  property,  I 
must  rely  on  the  law  for  protection,  both  economic  and  artistic. 

As  much  as  I  believe  that  we  are  inextricably  connected  to  one  another  in  our 
individual  and  collective  impact  on  the  global  environment,  I  also  believe  ours  has 
become  a  global  economy,  and  American  creators  should  be  accorded  at  least  as 
favorable  a  protection  at  law  as  creators  in  other  ccnmtries.  We  cannot  chastise 
countries  which  do  no  provide  as  high  a  level  of  copyright  protection  as  is  provided 
under  American  law,  when  American  law  does  not  provide  as  high  a  level  of 
protection  as  laws  in  other  western  countries,  such  as  the  European  Community. 

I  urge  you  to  pass  H.R.  989,  to  extend  the  maximvun  protection  to  American 
intellectual  property,  to  encourage  the  creative  minds  in  America  to  continue  to 
produce  the  songs,  the  plays,  the  books,  the  films,  the  photographs,  the  designs,  the 
software  -  the  art  -  that  inspires  the  world. 

Thank  you. 


243 

[The  prepared  statement  of  Mr.  Menken  follows:] 

Prepared  Statement  of  Alan  Menken,  Composer 

I  am  sorry  I  can't  be  with  you  today  to  discuss  the  Copyright  Term  Extetision  Act  in  person. 
However,  the  terms  of  the  proposed  act  are  very  important  to  me  both  professionally  and 
personally  and  I  want  to  take  this  opportunity  to  make  my  position  clear  to  the  Members  of  the 
House. 

You  may  know  me  as  the  composer  of  Pocahontas.  The  Little  Mermaid.  Beauty  and  the  Beast 
and  Aladdin.  I  have  made  my  living  as  a  composer  since  my  first  musical-theatre  shows  God 
Bless  You.  Mr.  Rosewater  and  Little  Shop  of  Horrors  and  I've  been  fortunate  enou^  to  have 
received  many  awards  for  my  work  including  six  Academy  Awards  and  nine  Grammy's.  While 
recognition  of  one's  work  is  always  gratifying,  I  am  very  concerned  that  the  copyright  protection 
of  my  work  and  the  interests  of  my  family  receive  the  maximum  possible  protection. 

The  basic  theory  of  copyri^t  duration  is  that  protection  should  exist  for  the  life  of  the  author 
and  tvvo  succeeding  generations.  The  life-plus-50  year  term  no  longer  offers  that  protection  due 
to  increased  life  expectancy  and  the  tendency  to  have  children  later  in  life.  On  Jidy  1,  1995  the 
European  Union  will  adopt  a  uniform  term  of  copyright  equal  to  life  of  the  author  plus  70  years. 
Because  of  the  application  of  the  rule  of  the  shorter  term,  American  authors  will  not  baiefit  from 
the  extended  term  unless  we  enact  copyright  term  extension  legislation. 

The  20-year  term  extension  is  a  modest  proposal  which  will  bring  us  in  line  with  The  European 
Union.   I  strongly  urge  you  to  join  your  colleagues  in  support  of  H.R.  989. 


244 

[The  prepared  statement  of  Mr.  Sondheim  follows:] 

Prepared  Statement  of  Stephen  Sondheim 
To  whom   it  may  concern   - 

As  a  working  songwriter/  former 
president  and  current  council  member  of  the 
Dramatists  Guild  suod  member  of  AmSong,  I  am 
committed  to  the  protection  of  U.S. 
copyrights,  and  so  I  regret  that  I  am 
unable  to  attend  the  July  13,  1995  Hearing 
to  voice  my  support  for  H.R.  989. 

The  current  term  of  copyright  --  a 
fixed  period  of  75  years  for  pre- 197 8  works 
euid  life  plus  50  years  for  works  written  on 
or  after  Jeuiuary  1,  1978  --  no  longer 
protects  American  creators  for  a  reasonable 
period  of  time.  All  too  often  works  have 
been  falling  into  the  piiblic  domain  during 
the  author's  lifetime  (e.g.,  Irving  Berlin) 
or  the  lifetime  of  the  author's  immediate 
successors,  which  is  contrary  to  the  intent 
of  our  copyright  laws.  H.R.  989  reflects 
the  reality  that  life  expectancy  has 
increased  by  at  least  20  years. 

The  countries  of  Europe,  and   nearly 
every  other  civilized  country,  inclement  a 
copyright  term  of  life  of  the  author  plus 
70  years.  Our  copyright  law  should  do 


245 


-  2  - 


everyt:liin9  possible  to  encourage  Americem. 
creativity.  A  modest  20 -year  term  extension 
will  further  this  purpose. 

I  applaud  Chairman  Moorhead  for 
introducing  H.R.  989  suid  urge  Congress 
to  enact  the  Bill  this  year. 


246 
[The  prepared  statement  of  Mrs.  Mancini  follows:] 

Prepared  Statement  of  Mrs.  Henry  Mancini 

I  regret  that  I  am  unable  to  attend  today's  Hearing  on  H.R.  989. 

I  am  Ginny  Mancini.  My  husband  was  Henry  Mancini,  the  songwriter.  Since  my  husband's 
work  became  widely  known  in  the  early  1950's,  it  has  become  part  of  the  fabric  of 
American  culture. 

I  commend  Chairman  Moorhead  for  introducing  the  Copyright  Term  Extension  Act  of  1995. 

In  light  of  the  harmonization  of  copyright  laws  in  the  European  Union,  all  European 
works  will  soon  be  protected  for  the  life  of  the  author  plus  70  years.  Some  of  my 
husband's  best  known  works  were  written  before  1978  and  therefore  are  protected  for  a 
flat  term  of  only  75  years. 

My  husband  always  intended  that  his  work  would  be  a  legacy  for  his  children.  Indeed, 
our  children  are  actively  involved  in  the  business  aspects  of  my  husband's  catalogue  and 
insuring  that  his  works  continue  to  be  available  to  the  public.  It  is  inconceivable  that 
such  works  would  go  into  the  public  domain  at  a  time  when  our  children  will  most  need 
the  support  from  the  copyrights  left  to  them  by  their  father.  It  is  particularly  egregious 
because  foreign  works  written  contemporaneously  with  my  husband's  works  will  continue 
to  be  protected  for  70  years  beyond  the  author's  death. 

Many  persuasive  arguments  support  a  20  year  extension  of  our  copyright. 

Copyright  term  extension  is  very  much  in  the  interests  of  the  American  economy  as  it 
relates  to  maintaining  a  surplus  balance  of  trade  in  an  expanding  world  marketplace  and 
generating  income  tax  revenues  from  American  creators  and  copyright  owners.  Moreover, 
strong  ethical  concerns  support  the  enactment  of  term  extension  legislation  as  a  matter  of 
justice  for  creators  and  their  families. 

I  urge  the  members  of  Congress  to  support  H.R.  989,  and  its  companion  Bill  S.  483,  and  to 
implement  this  legislation  now. 


247 

[The  prepared  statement  of  Ms.  Donaldson  follows:] 

Prepared  Statement  of  Ellen  Donaldson,  Donaldson  Publishing  Co.,  Vice 

President,  AmSong 

I  welcome  the  opportunity  to  express  my  strong  support  for  H.R  989,  The  Copyright  Term 
Extension  Act  of  1995,  and  to  submit  a  statement  for  the  record. 

On  behalf  of  my  family  I  wish  to  thank  Chairman  Carlos  Moorhead  for  introducing  H  R  989 
I  also  thank  the  many  co-sponsors  of  this  legislation  from  the  Subcommittee,  Representatives 
Becerra,  Berman,  Bono,  Clement,  Coble,  Conyer,  Gallegly,  Gekas,  Goodlatte,  Nadler  and  Schroeder. 

On  March  10,  1994  I  wrote  a  letter  to  the  Acting  Register  of  Copyrights  Barbara  Ringer, 
expressing  my  deep  concerns  and  strong  support  for  copyright  term  extension,  explaining  in  detail 
the  devastating  consequences  we  and  others  face  if  Congress  fails  to  enact  such  legislation.  That 
letter  is  attached  hereto  as  part  of  my  statement 

We  are  just  one  of  many  music  publishing  families,  writers  and  owners  of  pre- 1978 
copyrights  with  a  fixed  term  of  copyright  of  75  years  from  date  of  registration,  who  face  the  imminent 
loss  of  our  works  (our  livelihoods)  to  public  domain  while  they  still  have  a  viable  commercial  life. 
The  extent  of  such  works  varies  widely  among  copyright  owners:  from  those  who  have  enormous 
song  catalogues  to  those  with  catalogues  of  two  or  three  income  -  producing  songs  who  live  quite 
literally  from  check  to  check  in  order  simply  to  pay  the  rent  or  put  a  child  though  school.  There  are 
many  writers  and  their  families  who  do  not  share  in  publishing  income  at  all  and  rely  solely  on  the 


248 


writer's  share  of  copyright  income. 

Despite  the  intent  of  the  1976  Copyright  law  and  the  basic  theory  of  copyright  duration  -  that 
protection  should  exist  for  the  life  of  the  author  and  two  succeeding  generations-  the  fact  is  that  the 
life  -plus  50  year  term  and  the  term  of  75  years  from  date  of  registration  for  pre- 1978  works  no 
longer  afford  that  protection,  due  to  an  increase  in  life  expectancy  Indeed,  many  authors'  children 
are  bom  late  in  the  authors'  lives,  often  well  past  their  most  productive  creative  years  An  extension 
of  copyright  term  by  a  modest  20  years  would  approximate  this  increase  in  longevity  It  would  as 
well  approximate  the  sustained  popular  appeal  of  such  authors'  copyrights.  The  rapid  growth  in 
communications  media  has  substantially  lengthened  the  commercial  life  of  innumerable  works.  If  we 
fall  behind  in  protecting  our  own  works  at  home,  our  domestic  short  sightedness  will  lead  to  global 
losses. 

The  European  Union,  along  with  most  of  the  developed  countries  of  the  world,  have  adopted 
a  uniform  term  of  copyright  equal  to  life  of  the  author  plus  70  years  or  longer  However,  because 
of  the  E.U.'s  application  of  "the  rule  of  the  shorter  term,"  American  copyrights  will  not  benefit  from 
this  extended  term  unless  Congress  enacts  copyright  term  extension  legislation  Without  such 
legislation,  foreign  works  will  have  far  longer  security  in  the  rapidly  expanding  global  marketplace; 
while  American  works  will  not  be  protected  beyond  the  current  (and  inadequate)  American  term  of 
copyright.  Our  works,  upon  which  our  livelihoods  are  based,  will  be  irrevocably  lost  to  public 
domain,  virtually  woridwide  The  question  must  be  asked:  Why  should  20  extra  years  of  protection 
(and  income)  be  given  away  to  the  worid,  free,  at  the  expense  of  America's  writers  and  copyright 
owners? 


249 


Copyright  term  extension  is  very  much  in  America's  economic  interest.  Along  with  our 
country's  broad,  vitally  important  concerns  in  maintaining  the  trade  surplus  we  currently  enjoy  in 
the  area  of  intellectual  property,  I  respectfully  urge  this  Congress  to  also  consider  the  prospective 
loss  of  American  culture,  the  loss  of  foreign  and  domestic  income,  loss  of  livelihood,  and  the 
concomitant  loss  of  income  tax  revenues  generated  by  its  creators  and  copyright  owners. 

We  desperately  need  harmonization  of  international  copyright  laws. 

We  need  such  legislation  now. 

It  is  a  matter  of  economics.  It  is  a  matter  of  trade. 

It  is  also  a  matter  of  justice. 


250 

Ellen  Donaldson 

Los  Angeles.  California  90004 

March    10,    1994 

Ms.  Barbara  Ringer 
Acting  Register  of  Copyrights 
The  Library  of  Congress 
Washington,  D.C.   20559 

Dear  Ms.  Ringer: 

This  past  December  I  was  fortunate  indeed  to  have 
attended  the  "U.S.  Copyright  Office  Speaks"  seminars  in 
Los  Angeles.  I  came  away  profoundly  impressed.  .  .with  the 
speakers  from  the  Copyright  Office,  the  complexity  and 
analysis  of  the  issues  discussed,  the  clarity  of  the 
presentations.  .  .and  with  a  renewed  appreciation  that  such 
people  make  up  one  of  the  most  important  institutions  in 
our  country.  One  which  affects  the  very  foundations  of 
our  government  generally. . .and  which  affects  my  family 
and  me  very  specifically. 

At  the  seminars  We  were  urged  to  respond  to  the 
issues  under  consideration  in  the  Copyright  Office... and 
how  those  issues  would  affect  us.   And  so  this  letter. 

My  father  was  Walter  Donaldson  (b.l891,  d.l947)  who 
wrote  popular  songs  from  1915  to  1947... a  gentle  man  of 
the  "Tin  Pan  Alley"  years,  the  early  years  of  American 
popular  music.  (I  have  enclosed  a  song  book  for  your 
information. ) 


251 


Ms.  Barbara  Ringer 
March  10,  1994 
Page  2 


My  letter  concerns  the  possibility  of  an  extension 
of  term  of  copyright,  the  effects  of  iituninent  (in  our 
case)  Public  Domain,  and  the  truly  disastrous  effect  of 
EU  Copyright  Law  vs.  U.S.  Copyright  Law.  .  .the  conflicting 
International  Copyright  Laws... on  my  family's  business, 
Donaldson  Publishing  Company,  within  three  years  time. 

Our  company  consists  solely  of,  and  is  built  upon  my 
father's  songs,  most  of  which  were  brought  into  our  firm 
at  the  Termination  Period. 

If  our  company  is  to  survive,  an  extension  of  term 
is  imperative.  As  time  is  so  critically  of  the  essence, 
we  urge  you  to  initiate  a  moratorium  until  the  issue  can 
be  fully  studied  and  recommendations  set  forth. 

My  concerns  are  complex.  The  issues  about  which  I'm 
writing  are  complex.  For  the  sake  of  clarity,  I've 
chosen  to  focus  on  one  song,  but  the  circumstances  are 
strikingly  similar  for  all  of  the  music  in  our  catalog. 

In  1919  my  father  wrote,  with  lyricists  Sam  Lewis 
and  Joe  Young,  "How  'Ya  Gonna  Keep  'Em  Down  On  The  Farm 
(After  They've  Seen  Paree)",  a  song  celebrating  Armistice 
and  the  end  of  World  War  I,  with  wildly  irreverent, 
peculiarly  American  humour... and  a  certain  mad  "take"  on 
life  after  so  much  tragedy.   Lt.  James  Reese  Europe  and 


252 


Ms.  Barbara  Ringer 
March  10,  1994 
Page  3 


his  legendary  syncopated  brass  band,  The  "Hellfighters 
Regiment"  (369th  Infantry  Division)  introduced  it... in 
the  Victory  Parade,  February,  1919,  that  welcomed 
President  Woodrow  Wilson  home  from  Paris  and  the  Treaty 
of  Versailles  preliminaries. . .to  an  uproarious,  still 
grieving,  celebratory  and  exhausted  populace  in  New  York 
City. 

The  song  marked  a  moment  in  time.  It  became, 
virtually  overnight,  a  singular  part  of  American  culture 
and  history.   It  still  is. 

There  followed  many  performances  and  many 
recordings,  which  have  been  regularly  re-mastered  and  re- 
issued over  the  years.  The  song  has  become  a  musical, 
journalistic,  commercial  and  literary  catch  phrase,  often 
quoted,  and  (still!)  often  used  in  concerts,  on 
television  and  radio,  in  films  and  documentaries. . .often 
to  convey  a  sense  of  time  and  a  sense  of  place  to  the 
generations  that  followed. . .at  other  times  used  in  a 
whole  other  way  to  lend  new  meaning  (for  instance,  a 
print  ad  by  a  Japanese  company  doing  business  in 
Paris. . . ) 

My  point  is:  Still  used,  still  there.  After  all 
these  years.  Not  lost  somewhere  in  "cyberspace".   It  is 


253 


Ms.  Barbara  Ringer 
March  10,  1994 
Page  4 


a  small  piece  of  the  jigsaw  puzzle  of  distinctly  American 
intellectual  property  that  helps  define  our  national 
culture.  It  has  been  protected  and  promoted  and  always 
available.  It  has  been  of  benefit  to  my  mother,  my 
sister  and  to  me,  as  my  father's  direct  heirs,  because 
the  song  is  still  earning  a  very  substantial  amount  of 
money  for  Donaldson  Publishing  Company .  (we  own  the 
Donaldson  share,  which  is  1/3  of  the  copyright)  as  well 
as  for  the  heirs/publishers  of  the  lyricists. 
(See  II  -  Business  History  -  attached.) 

I  must  add  that  we  have  granted  synchronization 
rights... on  a  gratis  basis... for  this  song  and  others, 
for  use  in  historical  documentaries  aimed  at  libraries, 
museums,  schools  and  Public  Television.  This  seems 
appropriate  to  us;  it  is  how  we  do  business. 

This  song,  musically  and  lyrically  certainly,  but 
also  because  of  its  unique  place  in  our  cultural  history, 
represents  the  cornerstone  of  my  father's  career  and,  in 
turn,  of  my  family's  publishing  company,  which  is  our 
livelihood. 

On  December  31  of  this  year,  "How  'Ya  Gonna  Keep  'Em 
Down  On  The  Farm"  is  due  to  go  into  Public  Domain,  as 
have  all  of  my  father's  songs  from  1915-1918. 


254 


Ms.  Barbara  Ringer 
March  10,  1994 
Page  5 


I  protest. 

The  loss  of  this  song,  which  I  believe  to  be  in 
conflict  with  the  intent  of  the  1976  Copyright  Law,  will 
have  a  profound  effect  on  our  publishing  company.  It 
will  also  mark  the  beginning  of  the  losses  of  our  most 
valuable,  income-producing  copyrights:  my  father's  music 
of  the  20's,  which  forms  the  very  core  of  our  business, 
and  will  mark  the  beginning  of  the  end  of  our  publishing 
company,  and  my  family's  livelihood.  Next  year:  "My 
Mammy"... in  two  years:  "My  Buddy"  and  "Carolina  In  The 
Morning". , .and  on  and  on  and  on. .  • 

I  do  not  believe  this  was  the  intent  of  the  1976 
Copyright  Law,  although  it  is  the  effect.  Who  could  have 
foreseen  the  ultimate  beneficiaries  of  that  most  welcome 
law  or  the  healthy  longevity  of  U.S.  senior  citizenry. 
I  believe  the  intent  was  that  the  term  of  copyright 
should  be  enlarged  to  cover  the  lifetime  of  the  author 
and  his  immediate  family.  Yet  here  we  are,  my  father's 
immediate  family:  my  mother,  in  her  80 's;  my  sister,  59; 
and  me,  55... all  going  strong,  running  a  thriving 
publishing  business,  and  facing  a  daunting  prospect:  the 
loss  of  our  copyrights  upon  which  our  business  is  based. 
Surely  the  issue  of  current  life  expectancy  must  be 


255 


Ms.  Barbara  Ringer 
March  10,  1994 
Page  6 


reconsidered;  yet  another  reason  for  a  much  needed 
moratorium  until  a  final  decision  is  made  on  extension  of 
term. 

The  current  "market"  is  very  healthy  indeed  for  the 
old  songs.  I  would  venture  a  guess  that  it  will  continue 
to  be  healthy  for  at  least  another  2  0  years.  The  songs, 
because  they  are  good,  will  continue  to  be  used.  Artists 
will  be  paid  for  recording  them,  records  will  be  sold, 
vintage  records  will  continue  to  be  re-mastered,  re- 
issued and  sold,  record  companies  will  be  paid,  the 
stores  selling  the  recordings  will  make  money,  an  ad 
agency  will  use  a  song  to  sell  its  clients'  products,  a 
motion  picture  company  will  include  it  on  a  soundtrack  to 
help  sell  tickets.  But  the  creator's  share,  meant, 
according  to  the  intent  of  the  1976  copyright  law,  for 
his  heirs,  will  be  left  out.  Everyone  will  benefit  from 
the  creator's  work  except  his  heirs. 

Further,  and  most  seriously:  It  appears  that  the  EU 
is  moving  toward  extending  its  term  of  copyright  to  life 
plus  70  years.  Germany  has  already  done  so,  and 
apparently  England  will  soon  comply  with  the  EU 
Directive.  It  is  my  understanding  that  Europe  will  not 
honor  American  copyrights  with  the  same  extension  of  term 


2Si6 


Ms.  Barbara  Ringer 
March  10,  1994 
Page  7 


unless  the  U.S.  extends  its  term  of  copyright  to  be  in 
accord;  and  that  Europe  will  revert,  for  American 
copyrights,  to  a  term  of  life  plus  50  years.  If  that 
happens,  it  will  be  nothing  short  of  catastrophic  for  us. 
It  means:  that  in  three  short  years,  in  1997. 
virtually  every  single  income-producing  song  in  Donaldson 
Publishing  Company  and  every  song  my  father  wrote  alone, 
will  go  into  Public  Domain  in  every  territory  in  the 
world  with  the  exception  of  the  U.S.  (Please  see  list  - 
I  -   attached.) 

The  reasons? 

I.  My  father  died  in  1947;  1997  is  the  fiftieth 
year  after  his  death. 

II.  Most  of  his  co-writers  pre-deceased  him. 

III.  He  was  the  sole  author  of  many,  many  songs. 

It  means:  that  our  total  income  will  be  cut  exactly 
in  half,  at  the  same  time  that  our  most  important 
copyrights  continue  to  go  into  Public  Domain  in  the  U.S. 

The  importance  of  Europe,  the  UK  and  Canada  to  our 
business  cannot  be  overstated. 

It  is  ironic  that  just  now,  when  the  old  songs  are 


257 


Ms.  Barbara  Ringer 
March  10,  1994 
Page  8 


in  demand  again  throughout  the  world,  the  international 
market  for  music  is  expanding  at  a  breathtaking  pace,  and 
scientific  and  technological  wizards  have  made  possible 
an  Information  Superhighway  and  a  world  of  new  markets 
for  our  music.  It  is  ironic  and  heartbreaking  that  now, 
as  the  EU  moves  to  extend  the  term  of  copyright  in 
Europe,  and  now,  in  what  promises  to  be  a  new  "golden 
age"  for  American  music,  both  old  and  new,  and  now,  when, 
for  the  first  time,  it  will  be  possible  to  earn  a  more 
substantial  income  from  our  old,  classic  songs  on  a 
worldwide  basis. . .Now,  our  songs  are  rapidly  going  into 
Public  Domain  in  our  own  country;  and,  in  three  years, 
because  of  conflicting  International  Copyright  Laws, 
virtually  an  entire  market,  indeed  a  world  of  markets 
will  be  irrevocably  lost  to  us  forever. 

The  finality  of  this  is  particularly  Draconian  for 
our  family  as  we  will  no  longer  be  able  to  claim 
ownership  of  my  father's  songs. 

An  extension  of  the  U.S.  Term  of  Copyright  and 
international  accord  in  extension  of  Term  of  Copyright, 
would  resolve  the  issue.  Conflicting  International 
Copyright  Laws  have  a  devastating  effect  on  some  of  us. 
Indeed,  eventually,  all  of  us. 


258 


Ms.  Barbara  Ringer 
March  10,  1994 
Page  9 


My  greatest  fear  is  that  the  intent  of  the  1976 
Copyright  Law  has  now  become  muddied  with  political 
rhetoric  and  conflicting  interests  that. . .surely! .  .  .can 
and  must  be  resolved  to  everyone's  benefit. 

Ms.  Ringer,  I  have  chosen  to  personalize  this 
letter.  I  do  not  presume  to  speak  for  others  in  similar 
situations.  However,  I  do  know,  from  numerous  private 
conversations  with  others,  that  they  too  will  be 
profoundly  affected  by  the  term  of  copyright  issue,  most 
acutely  those  families  with  very  small  catalogs  who  are 
struggling  to  pay  bills,  and  who  live,  quite  literally, 
from  check  to  check  simply  to  pay  the  rent!  We  are 
suffering  from  "the  law  of  unintended  consequences". 
Dire  consequences.  Right  now,  that  law  seems  to  prevail, 
causing  grievous  harm  to  us. 

We  are  so  grateful  for  the  1976  Copyright  Law: 
grateful  for  the  foresight,  wisdom  and  perseverance  that 
went  into  the  writing  of  it.  Believe  me,  it  made  a 
positive  impact.  The  honorable  intent  implemented  by 
that  law  is  the  basis  of  so  much  good  for  so  many  people! 

Now,  in  the  90 's,  given  the  unexpected  longevity  of 
the  immediate  heirs  to  copyrights,  the  unexpected 
longevity  and  continuing  popularity  of  the  songs  on  which 


259 


Ms.  Barbara  Ringer 
March  10,  1994 
Page  10 


our  businesses  are  based,  the  technological  advances,  and 
the  terrifying  effects  of  EU  copyright  laws,  and  faced 
with  formidable  challenges  and  opposition,  we  must 
preserve  that  intent.  Our  copyrights  must  be  protected 
in  foreign  territories  as  well  as  in  the  United  States. 
We  must  have  an  extension  of  term  of  copyright  if  our 
businesses  are  to  survive.  We  must  have  a  moratorium  at 
the  very  least. 

There  must  be  a  way  for  the  matter  to  be  pursued  to 
a  more  just  conclusion  for  everybody  concerned. 

Your  wise  counsel  and  advice  would  be  most  deeply 
appreciated. 

Thank  you  for  your  consideration  and  attention  to 
this  urgent  matter. 

Sincerely  yours, 

Ellen  Donaldson 

Donaldson  Publishing  Company 


Honorable  James  H.  Billington, 
The  Librarian  of  Congress 
Charlotte  Douglas,  U.S.  Copyright  Office 
Mary  B.  Levering,  U.S.  Copyright  Office 
Marybeth  Peters,  U.S.  Copyright  Office 
William  Roberts,  U.S.  Copyright  Office 
Dorothy  Schrader,  U.S.  Copyright  Office 
Eric  Schwartz,  U.S.  Copyright  Office 


260 


Ms.  Barbara  Ringer 
March  10,  1994 
Page  11 


cc:  (continued) 

ASCAP:     Marilyn  Bergman,  President 


Jack  Beeson 
John  Cacavas 
Cy  Coleman 
Hal  David 
Morton  Gould 
Arthur  Hamilton 
Wayland  Holyfield 
Burton  Lane 
John  Mandel 
Stephen  Paulus 
Stephen  Sondheim 


Leon  Brietler 
Arnold  Broido 
Ronald  Fried 
Nick  Furth 
Donna  Hilley 
Dean  Kaye 
Leeds  Levy 
Keith  Mardak 
John  McKellan 
Jay  Morgenstern 
Irwin  Robinson 


Fred  Konigsberg,  Esq. 

The  Songwriters  Guild  of  America: 

George  David  Weiss,  President 


261 


I 

without  an  extension  of  U.S.  Term  of  Copyright,  in 
accord  with  the  EU  extension  of  Term  of  Copyright,  the 
following  songs,  among  others,  will  go  into  public  domain 
in  virtually  every  territory  of  the  world  outside  the 
United  States  in  three  years,  in  1997; 
My  Buddy 

Carolina  In  The  Morning 
Beside  a  Babbling  Brook 
My  Best  Girl 
Yes  Sir!  That's  My  Baby 
That  Certain  Party 
I  Wonder  Where  My  Baby  Is  Tonight 
After  I  Say  I'm  Sorry 
Don't  Be  Angry 
Thinking  Of  You 
Where 'd  You  Get  Those  Eyes 
No  More  Worry in' 
He's  The  Last  Word 
Sam,  The  Old  Accordion  Man 
At  Sundown 
My  Ohio  Home 
My  Blue  Heaven 
Changes 

Because  My  Baby  Don't  Mean  Maybe  Now 
Out  Of  The  Dawn 


262 


The  entire  score  of  the  musical  "Whoopee",  including: 

Makin'  Whoopee! 

Love  Me  Or  Leave  Me... among  many  other  songs 

Kansas  City  Kitty 

Reaching  For  Someone 

'Tain't  No  Sin 

Romance 

Little  White  Lies 

My  Baby  Just  Cares  For  Me 

Sweet  Jennie  Lee 

You're  Driving  Me  Crazy 

Hello  Beautiful! 

Without  That  Gal 

That's  What  I  Like  About  You 

Ev'ning  In  Caroline 

Nobody  Loves  No  Baby  Like  My  Baby  Loves  Me 

My  Mom 

Dancing  In  The  Moonlight 

Hiawatha's  Lullaby 

You've  Got  Everything 

Riptide 

I've  Had  My  Moments 

Sleepy  Head 

Okay  Toots! 

An  Earful  of  Music 


263 

When  My  Ship  Comes  In 

Clouds 

Why'd  Ya'  Make  Me  Fall  In  Love 

Fit  To  Be  Tied 

etc.,  etc.,  etc... and  every  single  song 

for  which  my  father  wrote  both  music  and  lyrics. 

(I  have  not  listed  the  complete  works.) 


264 

[The  prepared  statement  of  Mr,  Schoenberg  follows:] 

Prepared  Statement  of  E.  Randol  Schoenberg 

I  apologize  for  not  being  able  to  attend  today's  hearing  on 
H.R.  989,  The  Copyright  Term  Extension  Act  of  1995,  but  appreciate 
that  my  views  and  the  views  of  other  heirs  and  copyright  holders 
will  be  represented  by  AMSONG,  Inc.,  of  which  I  am  a  member. 

It  is  my  understanding  that  the  proposed  bill  will  extend  the 
term  of  copyright  to  70  years  after  the  death  of  the  author,  or  95 
years  for  pre-1976  works.  The  bill  would  bring  the  United  States 
in  line  with  the  intellectual  property  protections  offered  by  the 
European  Community  and  other  Berne  Convention  signatories. 

Beyond  the  obvious  symbolic  significance  of  a  measure  which 
would  make  the  United  States  once  again  the  world's  leading 
protector  (and  producer)  of  intellectual  property,  copyright 
extension  will  greatly  impact  my  family,  as  well  as  the  families  of 
many  other  composers  and  authors. 

My  grandfather,  the  world-renowned  Austrian-American  composer, 
Arnold  Schoenberg,  came  to  this  country  in  1933  after  being  forced 
by  the  Nazis  to  abandon  his  position  as  the  leading  composition 
teacher  at  the  Academy  of  Arts  in  Berlin,  Germany.  He  worked  and 
taught  in  Boston  and  New  York,  and  from  1934  until  his  death  in 
1951,  in  Los  Angeles,  where  my  family  still  resides.  After  his 
death,  UCLA  named  its  music  building  Schoenberg  Hall  in  his  honor, 
and  use  built  the  Arnold  Schoenberg  Institute  to  house  his 
archives.  He  is  generally  considered  to  be  the  most  important  and 
influential  composer  of  the  twentieth  century,  and  is  called  by 
some  the  "father  of  modern  music." 

We  are  informed  that,  notwithstanding  its  longer  copyright 
term,  the  European  Community  has  decided  not  to  recognize  the 
copyrights  of  American  authors  and  composers  beyond  the  term  for 
protection  provided  in  the  United  States.  If  this  "rule  of  the 
shorter  term"  were  applied  to  my  grandfather's  works,  many  of  them 
might  lose  their  copyright  protection  in  the  year  2001. 

As  you  might  imagine,  our  family  receives  a  large  portion  of 
our  royalty  income  from  European  performances.  It  would  be  a 
tremendous  loss  for  us  if  in  2001  the  European  Community  stopped 
protecting  my  grandfather's  landmark  American  works,  such  as  the 
Violin  Concerto,  the  Piano  Concerto,  and  "A  Survivor  from  Warsaw" 
(which  was  performed  at  the  opening  of  the  Holocaust  Museum  in 
Washington,  D.C.). 

The  extension  of  the  copyright  term  will  assist  the  families 
who  are  the  intended  beneficiaries  of  the  copyright  term.  Despite 
his  importance  in  the  field  of  music,  my  grandfather  died  in  1951 
with  few  assets  aside  from  his  artistic  works.  (He  gave  his 
letters  to  the  Library  of  Congress,   forming  one  of  the  most 


■  DOfUMENT*:  1^^112551 1. V  I  ;DAir..07/(lft/<(.>/nMl;  12  36  = 


265 


valuable  collections  in  the  Music  Division.)  He  left  behind  my 
grandmother  and  three  young  children  (age  10,  14  and  19)  who 
survived  primarily  on  copyright  royalties.  Today,  our  family 
continues  to  spend  a  great  deal  of  time  and  energy  promoting  my 
grandfather's  works  and  protecting  his  cultural  legacy  which  is  a 
treasured  asset  of  the  City  of  Los  Angeles. 

My  generation,  the  grandchildren,  span  from  age  17  to  35.  It 
would  be  a  great  loss  if  our  family  were  not  now  able  to  reap  the 
benefits  of  my  grandfather's  life's  work,  just  as  those  benefits 
are  coming  to  fruition.  In  serious  music,  even  70  years  after 
death  is  sometimes  insufficient.  J.  S.  Bach's  music  had  to  wait 
almost  100  years  after  the  composer's  death  before  Felix 
Mendelssohn  "discovered"  it  and  proclaimed  its  greatness  to  the 
world. 

My  grandfather  wrote  an  essay  in  1949  in  which  he  challenged 
the  philosophical  underpinnings  of  the  copyright  term  and 
questioned: 

why  an  author  should  be  deprived  of  his 
property  only  for  the  advantage  of  shameless 
pirates,  while  every  other  property  could  be 
inherited  by  the  most  distant  relatives  for 
centuries. 

Indeed,  there  does  not  seem  to  be  any  sound  reason  for  this 
disparity  in  the  treatment  of  intellectual  property  from  other 
forms  of  property.  As  the  nations  of  the  world  lengthen  the  term 
of  copyright,  intellectual  property  is  beginning  to  be  placed  on  an 
equal  playing  field  with  other  forms  of  property.  This  is  as  it 
should  be.  For  the  record,  I  have  attached  a  copy  of  my 
grandfather's  essay. 

For  my  grandfather,  as  with  most  serious  composers  today,  the 
prospect  of  performances  and  recognition  after  his  death  was  his 
only  hope  of  compensation  and  support  for  his  young  family.  Had  he 
not  had  faith  in  the  ability  of  his  copyrights  to  support  his 
family,  he  would  not  have  been  able  to  devote-  the  time  that  his 
groundbreaking  work  required.  Certainly,  The  Copyright  Term 
Extension  Act  of  1995  will  be  a  further  inspiration  to  those 
artists  creating  today,  whose  works  are  also  not  likely  to  receive 
their  due  during  their  lifetimes. 

Thank  you  for  your  support  of  this  important  measure. 


266 


COPYRIGHT 

'949 

The  copyright  law  wa»  oonsidered  up  to  now  m  forbidding  pinlca  to  ttoil  sn 
luthor's  property  before  a  maximum  of  fifty-»ix  yeai«  tflcr  its  rc^tntion.  After 
Ibis  lime  every  pirate  could  uae  it  fiedy,  moUng  great  piolita  without  letting  the 
real  owner  'participate'  in  the  profitr  of  hit  property, 

The  moral  which  had  created  a'law  of  this  kind  seemed  so  low  and  unin* 
tciligibte  that  one  always  wondered  in  whose  interest  it  was  created,  and  why  an 
lutiwr  should  be  deprived  of  his  property  cmly  for  the  advantage  of  shamelesa 
pirates,  while  every  other  property  could  be  inherited  by  the  most  dtatant 
lelfttivcs  for  centurica.  Nobody  can  prove  that  the  lo  per  ccikt  which  the  author 
—the  creator,  the  real  o>wncr  of  this  property — would  receive  after  the  fifty -six 
years  would  have  caused  any  damage  to  the  public.  Because*  if  a  work  is  still 
sellable  after  fifty-six  yeara^  die  editions  which  a  publisher  prints  can  be  so  large 
that  the  cost  of  products  decreases  to  25  per  cent  ol  the  cost  of  the  amsller 
editions.  Accordioglyi  the  prices  wittt  the  expiration  of  the  'proteclioa  period* 
go  down  60  per  cent  aiul  nwre  (as»  for  instance*  the  cases  of  Wagner  and  Brahms 
indicste).  Accordingly,  even  at  60  per  cent  plus  10  per  cent  for  the  suthor,  the 
public  would  buy  the  work  for  much  less  than  durli^  the  ^proteotiou  period*. 

All  this  seems  to  be  perfectly  sensdeas  and  one  can  only  think  that  it  is 
maliciousness  opunst  the  heirs  of  an  author — while  other  hcira  remaia  un- 
molcatcdl 

Now  I  have  discovered  the  true  solution  to  thla  problem: 

At  the  time  when  thn  kw  was  msde  there  did  not  yet  exisi  the  so-called 
'small  rights';  there  was  not  yet  the  radio,  the  movies,  recordings,  there  was  no 
payment  for  performanoe.  At  this  time  most  authors  sold  their  vrorks  to  s  pub- 
lisher entirely,  with  all  rights  included.  TWt  participation  of  the  suthors  in 
royalties  of  sates,  of  rcntab,  of  pcifomunoes,  rccordingSj  radio,  and  movie 
transcriptions  was  not  foreseen  by  the  suthor  nor  by  the  publisher.  I  conclude 
that  the  law  was  not  made  to  deprive  the  suthor  of  his  property. 

It  was  msde  in  analogy  to  the  pstent  taws,  admitting  exduaive  rights  only 

4W 


267 


iOCtAL  AND  POLITICAL  MATTBRB 


for  a  limited  time.  A  publiilter,  a  manufactuKr  was  not  considered  an  the  only 
one  who  should  pfofit  Irom  other  people's  creation.  And  especially  in  respect  to 
the  patent  laws  there  are  many  interests  which  require  protection.  Never  could 
it  have  become  possiMe  that  everybody  could  trarel  by  railroad  or  steamship  or 
posacas  an  automobile,  if  one  manufacturer  had  the  production  monopolized. 
One  should  also  here  regret  the  poor  inventor  who  seems  to  be  damaged,  fiul 
generally  an  inventor  is  forced  to  sell  his  patent  to  a  powerful  man,  because  he  is 
unable  to  produce  himaelf.  If  there  were  such  a  thing  as  'Human  Rights',  he 
should  be  protected — though  the  risk  of  marketing  a  new  invention  is  a  great 
one,  and  seldom  is  an  invention  from  the  very  beginning  perfect  enough  to 
become  a  succeas.  Think  of  all  the  improvements  which  were  required  to  make 
an  automobile  as  perfect  as  it  must  be. 

Such  b  not  the  case  in  th^  realm  of  copj^ght.  A  pubtisherV  risk  is  not  ts 
hrgt  and  he  tuuaDy  gambles  on  several  numbers,  ont  of  which  might  cover  all 
possible  losses.  The  publisher  is  seldom  forced  to  mdce  improvements.  Generally 
the  works  are  finished  and  ready  to  be  sold.  Still,  if  one  had  the  monopoly,  he 
would  not  reduce  the  prices,  as  Schott's  and  8imrock's  attitude  proved,  and 
therefore  hia  rights  must  be  limited.  He  is  still  thereafter  in  the  position  to  com- 
pete successfully  with  the  pirates,  especially  if  he  improves  his  editions. 

It  seems  to  me  that  this  was  the  intention  of  the  lawmakers.  It  is  regrettable 
that  they  had  no  imagination  to  foresee  at  least  some  of  the  valuea  which  nught 
be  added  to  a  work,  and  that  the)r  worded  this  law  so  poorly  that  the  wrong 
interpretation  was  pos«ble — that  the  law  wanted  to  deprive  the  creator  and 
serve  the  pirates. 

How  it  was  possible  to  eittcnd  this  inisintcrpretation  to  toyahics,  perfonn- 
anoe  fees,  recording  fees,  etc,  ia  entirely  unintcll^ble.  Admitting  that  the  law* 
tnakera  in  whoae  hands  our  destiny  was  delivered  were  unthinking  and  possessed 
no  imagination,  one  is  still  surprised  that  nobody  tried  to  find  out  for  which 
purposes  such  a  kw  should  serve,  tn  whose  interest  was  it^  Is  the  interest  of 
those  t)eople  to  whom  it  b  advantageous  worthy  of  protection?  Or  b  this  law 
based  on  the  same  consideration  as  the  law  which  protecta  the  criminal  instead 
of  the  victim? 


49« 


268 
[The  prepared  statement  of  Ms.  Durham  follows:] 

Prepared  Statement  of  Marsha  Durham 

My  name  is  Marsha  Durham  I  am  a  daughter  of  Eddie  Durham,  an  African/Indian  American 
composer,  writer,  arranger,  trombonist,  guitarist  and  innovator  of  the  electric  guitar  and  of  South 
Western  Swing.  When  my  father  died  in  1987  he  left  his  estate  to  4  children  ranging  in  age  from  18 
to  50    At  that  time,  my  father  had  3  grandchildren  ranging  in  age  from  1  to  18 

I  am  a  divorced  parent  of  two  young  daughters.  I  receive  no  child  support  and  rely  on  my  salary  as 
a  paralegal  and  whatever  income  I  derive  from  my  father's  estate  to  cover  our  household  and 
education  expenses. 

My  youngest  sibling,  T.  Edward,  is  a  very  talented  musician  in  his  own  right,  and  now  the  father  of 
two  children.  The  small  income  he  derives  from  my  father's  copyrights  have  allowed  him  to  pursue 
the  difBcult  livelihood  of  the  new  songwriter. 

My  sister,  Lesa,  who  is  at  the  beginning  of  her  professional  life  and  my  brother,  Eddie  Jr  ,  who  is  in 
retirement,  similarly  rely  on  their  share  of  the  small  royalty  income  to  care  for  themselves  and  their 
families. 

I  should  stress  that  the  income  we  derive  from  my  father's  work  is  indeed  small  -  a  great  deal  smaller 
than  would  seem  fair,  given  his  extraordinary  variation  of  musical  talents  and  a  great  deal  smaller 
than  the  legacy  our  father  hoped  to  leave  for  his  children  and  grandchildren. 

My  father,  like  many  jazz  composers  in  the  first  half  of  this  century,  was  often  at  the  mercy  of 
unscrupulous  advisers.  His  lack  of  business  sophistication  caused  him  to  lose  many  of  the  fruits  of 
his  creative  labor  and  greatly  diminished  the  royalties  he  and  our  family  should  have  received  over 
the  past  65  years. 

For  example,  my  father  was  the  arranger  of  the  world  renown  Glenn  Miller  classic  "IN  THE 
MOOD"  However,  he  received  nothing  for  his  work  beyond  a  very  small  one-time  fee.  The 
monetary  loss  from  this  one  historical  song  is  devastating  to  my  father's  legacy  We  similarly  receive 
no  compensation  for  "  1  O'CLOCK  JUMP"  which  my  father  wrote  for  Count  Basic 

The  copyrights  my  father  did  manage  to  retain  include  "TOPSY",  "GOOD  MORNING  BLUES,"  "I 
DON'T  WANNA  SET  THE  WORLD  ON  FIRE,"  "MOTENS  SWING"  and  "LUNCEFORD'S 
SPECIAL "  These  songs  were  assigned  to  various  publishers,  and  very  little  income  has  accrued  to 
my  father's  estate.  However,  after  many  years  of  arduous  research  I  am  finally  in  the  process  of 
recapturing  the  rights  to  these  songs  for  the  final  1 9  years  of  copyright  protection  available  under  the 
1976  Copyright  Act.  I  am  hopeful  that  through  careful  management  of  my  father's  catalogue  my 
brothers,  sister  and  I  will  be  able  to  recoup  our  legal  expenses  and  to  derive  some  revenues  from  our 


269 


fether's  songs.  The  irony  is,  of  course,  that  absent  an  extension  of  the  term  of  copyright  we  will  have 
only  a  few  short  years  of  income  from  these  songs  which  should  rightfully  have  been  a  source  of 
income  for  my  father,  his  children  and  his  grandchildren  for  many  years. 

On  behalf  of  myself,  my  brothers  Eddie  Durham  Jr.  and  T.  Edward  Durham  and  my  sister 
Lesa  Durham  I  wish  to  thank  Chairman  Moorhead  for  introducing  H.R.  989  and  to  urge  Congress 
to  enact  the  Bill  this  year. 


270 
[The  prepared  statement  of  Ms.  Miller  follows:] 

Prepared  Statement  of  Betty  Kern  Miller 

Dear  Chairman  Moorhead: 


I  am  the  daughter  and  only  child  of  the  late  Jerome  Kern, 
and  I  have  been  following  with  great  interest  your  proposal  to 
extend  the  period  of  copyright  protection  in  this  country.   I  am 
grateful  to  you  for  having  introduced  legislation  that  would 
extend  copyright  protection  in  this  country  for  my  father's  work 
and  for  all  other  intellectual  property  for  an  additional  twenty 
years,  and  I  urge  you  to  continue  to  support  that  legislation  and 
to  attempt  to  have  it  enacted  into  law  as  soon  as  possible. 

My  health  has  not  permitted  me  to  travel  to  New  York  to  see 
the  current  successful  revival  of  SHOW  BOAT  for  which  my  father 
wrote  the  music,  and  it  does  not  permit  me  to  come  to  Washington 
for  the  hearing  that  is  scheduled  for  July  13th.   I  wanted  you  to 
understand  however,  that  my  absence  does  not  mean  that  I  am  not 
fully  in  support  of  the  proposed  extension  of  copyright  and 
grateful  to  you  for  what  you  are  doing  in  support  of  American 
copyrights . 

Writing  with  such  wonderful  lyricists  as  Oscar  Hammerstein 
II,  P.G.  Wodehouse,  Otto  Harbach,  Dorothy  Fields,  Johnny  Mercer 
and  Ira  Gershwin  to  name  but  a  few,  my  father  wrote  many  of  our 
best  known  and  loved  songs  and  musical  scores .   In  addition  to 
the  score  of  SHOW  BOAT,  among  the  more  than  1,000  songs  he  wrote 
are   "Smoke  Gets  In  Your  Eyes",  "All  The  Things  You  Are",  "A  Fine 
Romance",  "The  Way  Your  Look  Tonight",  "The  Last  Time  I  Saw 
Paris",  "I'm  Old  Fashioned"  and  "Long  Ago  and  Far  Away".   Under 
the  current  law  his  earlier  works  have  been  falling  into  the 
public  domain  each  year  for  some  time.   For  example,  his  songs 
"How'd  You  Like  to  Spoon  With  Me",  "They  Didn't  Believe  Me"  and 
"Till  The  Clouds  Roll  By"  are  already  in  the  public  domain,  and 
"Look  For  The  Silver  Lining"  will  fall  into  the  public  domain  on 
January  1,  1996,  if  copyright  extension  legislation  is  not  passed 
this  year. 


271 


Honorable  Carlos  Moorhead 
July  7,  1995 
Page  2 


I  urge  you  to  extend  copyright  in  this  country  as  soon  as 
possible,  not  only  because  of  the  economic  considerations 
involved  but  also  because  of  the  lack  of  control  that  occurs  when 
copyrights  are  permitted  to  fall  into  the  public  domain  during 
the  lives  of  the  first  generations  of  authors'  heirs.   The 
musical  "SHOW  BOAT"  is  still  playing  to  hundreds  of  thousands  of 
people  throughout  this  country  and  the  world,  and  yet  it  will 
soon  fall  into  the  public  domain  if  copyright  is  not  extended  in 
this  country,  thereby  ending  our  ability  to  control  the  quality 
of  its  many  productions.   Since  my  father  died  fifty  years  ago 
this  year,  his  works  will  also  begin  to  fall  into  the  public 
domain  in  foreign  countries  unless  we  extend  copyright  so  that 
foreign  countries  who  give  protection  for  seventy  years  after 
death  to  their  own  authors  will  grant  that  sairie  protection  to 
United  States  authors . 

I  thank  you  again  for  the  support  that  you  have  shown  not 
only  for  the  works  of  my  father  but  also  for  the  works  of  all  of 
those  whose  work  during  this  century  has  contributed  to  our 
American  musical  and  literary  heritage. 


r\    /» 


272 

[The  prepared  statement  of  Ms.  Barrett  follows:] 

Prepared  Statement  of  Mary  Ellin  Barrett,  Daughter  of  Irving  Berlin 

First  I  want  to  thank  Representative  Carlos  Moorhead  for  introducing  H.R.  989,  the  Copyright  Term 
Extension  Act  of  1995  AJl  children  of  authors,  not  to  mention  authors  themselves,  should  be 
enormously  grateful  to  him. 

Obviously  I,  and  those  I  presume  to  speak  for,  have  a  personal  stake  here  and  that  basically  is  what 
I'm  going  to  talk  about ...  the  question  of  what  is  fair  and  right  for  the  creative  people  of  this  country, 
and  their  heirs 

Because  of  my  father's  long  life  and  young  beginnings,  his  songs  -  most  notably  "Alexander's 
Ragtime  Band"  -  began  falling  into  the  public  domain  more  than  a  decade  ago,  before  he  himself  died. 
.At  that  time  his  daughters  were  in  their  forties  and  fifties  and  his  grandchildren  (all  but  one)  in  their 
teens  and  twenties.  Every  year  now  more  of  those  songs  he  hoped  to  leave  as  a  legacy  to  those 
children  and  grandchildren  become  public  property  The  past  ten  years  have  seen  the  loss  of,  among 
others,  "When  I  Lost  You".  "When  The  Midnight  Choo  Choo  Leaves  for  Alabam"'.  "'Play  A  Simple 
Melody".  "I  Love  A  Piano ',  "A  Pretty  Girl  is  Like  a  Melody",  "You'd  Be  Surprised",  all  still  money 
makers.  There  is  also  "Oh  How  I  Hate  to  Get  Up  In  the  Morning '  which,  like  all  my  father's  wanime 
army  show  songs  belongs  to  the  God  Bless  America  Fund.  (But  that  is  a  whole  other  story,  the  rich 
royalties  he  has  given^way  to  his  country)  Next  year  "All  By  Myself,  "Everybody  Step",  "Say  It 
With  Music"  will  go.  and  so  it  will  continue  year  by  year 

Yet  the  basic  principal  of  copyright  duration  is  that  protection  should  exist  for  the  life  of  the  author 
and  two  succeeding  generations  My  father  began  young  but  had  his  children  relatively  late  - 
something  that  is  happening  more  and  more  today  75  years  from  registration  of  pre- 1978  works  - 
our  situation  -  doesn't  come  close  to  offering  that  traditional  protection.  Nor,  given  today's  life 
expectancy,  does  "'life  plus  50  years"  give  proper  coverage. 

So  authors  and  their  families  will  indeed  suffer  if  works  fall  into  the  public  domain  while  still 
commercially  viable  Someone  -  not  the  public  -  will  be  making  money  out  of  another  person's 
property  And  there  are  many  families  much  more  at  risk  than  the  heirs  of  Irving  Berlin  -  those 
whose  catalo2ues  are  more  concentrated  in  time,  with  a  smaller  number  of  huae  continuinsj  hits 


273 


And  with  the  new  uniform  term  of  copyright  adopted  by  the  European  Union  -  "life  plus  70"  -  there 
will  be  further  attrition.  Because  of  the  "rule  of  the  shorter  term",  American  authors  will  not  benefit 
from  the  20  year  extension  abroad  unless  we  enact  similar  legislation  here.  (In  the  case  of  pre- 1 978 
works,  it  must  become  95  years  from  registration). 

This,  of  course,  brings  up  the  much  broader  balance  of  trade  issue.  Intellectual  property,  I'm  told, 
is  America's  second  largest  export.  It  won't  only  be  individual  composers,  lyricists,  film  makers, 
playwrights,  writer  of  fiction  and  fact,  who  will  suffer  but  American  trade  as  a  whole.  That  all 
important  question  is  one  for  trade  experts  to  address.  I  am  not  an  economist. 

My  question,  as  the  child  of  a  creator,  as  a  person  who  values  the  ans  (and  as  a  working  writer),  is 
simply  this:  why  is  my  country,  so  protective  of  other  kinds  of  property,  so  reluctant  to  recognize  the 
rights  of  the  creative  variety'' 

Non-creative,  non-intellectual,  property  can  be  handed  down  indefinitely,  as  long  as  each  generation 
pays  its  death  taxes.  Land  rich  in  natural  resources,  businesses  based  on  manufacturing,  clothing, 
cars,  liquor,  fortunes  in  real  estate,  etc  etc  etc,  can  be  supporting  a  fourth,  fifth,  sixth  generation. 
Why  shouldn't  businesses  based  on  creativity  have  a  similar  right  ~  or  at  least  be  guaranteed 
proteaion  for  the  life  of  the  author  and  two  succeeding  generations  -  which  is  what  this  bill,  if  passed, 
conceivaoly  might  do 


This  as  a  question  that  troubles  me  greatly,  beyond  my  own  immediate  interests,  and  those  of  every 
heir  and  living  author  who  shares  my  gratitude  for  what  you.  Representative  Moorhead,  have 
proposed. 


274 

Mr.  MOORHEAD.  Well,  thank  you  very  much. 

Opponents  of  copyright  term  extension  point  out  that  there  are 
a  number  of  benefits  to  the  public  domain  that  will  be  lost  or  post- 
poned as  a  result  of  this  legislation.  How  do  you  respond?  Is  there 
any  public  benefit  in  extending  the  copyright? 

Mr.  Jones.  I'm  sorry,  I  didn't  get  the  question. 

Mr.  MooRHEAD.  Opponents  say  that  term  extension  will  deprive 
the  general  public  of  certain  of  their  benefits  or  at  least  postpone 
them,  as  a  result  of  this  legislation.  How  do  you  respond  and  is 
there  any  public  benefit  in  extending  the  copyright? 

Mr.  Jones.  Well,  the  public  benefit  is  cop3rrighted  works  usually 
are  more  available.  The  cost  to  the  public  stays  exactly  the  same, 
and,  also,  it  allows  the  estates  to  be  involved  in  receiving  the  bene- 
fits of  what  the  creators  have  left  as  their  legacy,  but  the  public 
I  think  will  get  more  efficient  programming  possibilities  and  have 
access  to  people  that  are  really  concerned  with  all  of  the 
accouterments  that  it  takes  to  make  a  piece  of  music  become  ex- 
posed and  to  grow. 

To  me,  copyright  is  in  many  ways  like  creative  real  estate,  and 
it  depends  on — depending  on  the  song — ^you  were  speaking  about 
economics  earlier.  When  we  did  the  album  "Thriller,"  the  song,  the 
value  of  the  songs  on  that  album  to  the  various  songwriters — there 
were  nine  songs  in  that.  The  songs  were  worth  about  $1.6  million 
each  in  terms  of  just  each  individual  writer.  That's  just  with  one 
album. 

Mr.  MooRHEAD.  One  of  the  things  that  people  have  been  con- 
cerned about  was  that  our  works  in  Europe  are  not  protected  for 
the  same  length  of  time  as  we  would  protect  the  works  of  European 
authors  in  the  United  States.  Is  this  a  substantial  economic  switch 
as  far  as  we're  concerned?  As  far  as  the  balance  of  trade,  does  it 
give  the  Europeans  and  other  nations  a  big  advantage  of  us 

Mr.  Jones.  A  tremendous  advantage.  I'd  cite  examples.  When 
records  in  America  like  "Thus  Spracht  Zarathustra,"  Richard 
Strauss  was  adapted  because  my  teacher  always  told  me  that  the 
melody  is  what  lingers  on,  and  that's  always  the  power  of  a  song. 
Even  though  they  changed  the  rh3d:hms  throughout  the  ages,  when 
"Spracht  Zarathustra"  was  released  as  a  single  in  the  United 
States,  it  was  public  domain.  And  when  it  was  released  in  Europe, 
they  still  had  to  pay  the  estate  of  the  Strauss  estate  for  that  par- 
ticular piece. 

They  have  a  tremendous  edge  on  us.  I  lived  in  Europe  for  a 
while.  I  was  a  member  of  SACEM.  It's  a  sister  of  ASCAP,  and  BM 
is  the  sister  agency  of  BMI.  Michel  LeGrande  is  one  of  my  closest 
friends,  and  I'm  embarrassed  to  have  a  conversation  with  him 
about  our  various  setups. 

Mr.  MOORHEAD.  A  while  ago,  the  discussion  centered  on  what  the 
benefit  would  be  for  us  in  taxes,  but  there  is  also  a  benefit,  is  there 
not — as  we  bring  more  money  into  the  United  States,  it  percolates 
down  in  jobs  and  in  investment,  and  so  forth.  So  whether  it  gets 
into  taxes  or  not,  we  have  a  real  benefit  in  money  coming  into  our 
country  instead  of  going  out,  as  it  does  with  the  purchase  of  so 
many  foreign  cars  and  the  foreign  equipment,  and  so  forth.  We 
need  something  to  balance  it. 


275 

Do  you  think  extending  the  copyright,  as  we're  trying  to  do  here, 
will  make  a  difference  there? 

Mr.  Jones.  Yes,  I  do.  I  think  it  could  be  a  strong  factor  in  a 
young  person  determining  whether  they  want  to  be  a  composer  or 
a  songwriter,  very  much  so. 

Mr.  MOORHEAD.  Well,  I  have  no  further  questions,  but  I'm  sure 
that  our  ranking  minority  member  of  our  committee,  Pat  Schroeder 
of  Colorado,  will. 

Mr.  Jones.  I  just  wanted  to  say  one  more  thing.  Probably  in  3 
or  4  years  all  of  the  rules  will  have  to  be  rewritten  anyway  because 
we  are,  as  we  step  out  of  the  industrial  revolution  century  into  the 
century  of  information  and  computers,  it  will  be  unbelievable. 

There  was  a  question  asked  before  about  the  Internet.  It  will  be- 
come one  global  unit,  and  I  can  feel  that  already,  the  way  we  do 
interviews  now  and  the  way  we  would  be  doing  them  in  2000,  when 
you  do  satellite  interviews.  Twenty  years  ago,  when  America  had 
totally  dominated  the  record  field,  we  would  have  our  records  re- 
leased here  and  become  hits,  and  2  years  later  maybe  they  would 
be  released  in  the  European  countries.  Today  they  may  come  out 
in  Europe  before  they  come  out  in  America.  And  it's  become  such 
a  global  and  unified  situation  that  it  seems  to  me  like  it  makes  a 
lot  of  sense  to  have — ^at  least  be  equal  with  our  European  counter- 
parts. 

Mrs.  Schroeder.  Thank  you,  Mr.  Chairman,  and  thank  you  very 
much  for  being  here  this  morning. 

Basically,  what  I  thought  I  heard  you  sa5dng  is  public  benefit 
doesn't  seem  to  work  because,  even  when  there  is  no  copyright,  the 
price  doesn't  go  down? 

Mr.  Jones.  That's  right. 

Mrs.  Schroeder.  So  that  somebody  is  pocketing  it? 

Mr.  Jones.  The  wrong  people  are  making  the  money. 

Mrs.  Schroeder.  The  question  is,  who  pockets  it;  right? 

Mr.  Jones.  Right,  with  the  manufacturers. 

Mrs.  Schroeder.  And  I  think  most  of  the  consumers  don't  un- 
derstand any  of  this,  so  that  they  wouldn't  know  to  look  for  a 
cheaper  product  because  it's  now  out  from  under  copyright. 

Mr.  Jones.  Right.  That's  the  example  with  the  Tolstoy  book. 

Mrs.  Schroeder.  And  that  is  really  one  of  the  issues  that  con- 
cerns you.  Either  we've  got  to  get  the  consumer  smarter  and  get 
the  price  down  or  you  may  as  well  keep  the  person  who  created  it, 
give  them  the  property  right  and  let  them  get  it.  Somebody's  being 
unjustly  enriched. 

Mr.  Jones.  You're  absolutely  right,  and  I  think  that  the  main 
point  is  to  inspire  our  young  people  to  want  to  be  in  this  field.  It 
would  be  very  easy  to  say  it's  not  worth  the  trouble.  It  takes  a  long 
time  to  develop  a  musical  background,  and  with  some  of  my  kids 
I  try  to  discourage  them  from  being  in  music  because  it's  a  very 
touch-and-go  type  of  a  profession  and  the  first  30  years  are  the 
hardest.  [Laughter.! 

And  if  you  do  happen  to  get  lucky  later  on — ^but  it's  a  very  tough 
profession,  and  I  think  every  type  of  encouragement  should  be 
right  down  front  and  there  for  them. 

Mrs.  Schroeder.  So  your  last  19  years  have  been  great;  right? 
[Laughter.] 


276 

But,  basically,  what  the  Constitution  says  about  public  benefit, 
because  the  idea  being,  then,  after  so  many  years  then  the  whole 
public  gets  to  share  it — ^you're  saying  that  that's  not  true;  that 
what  they  had  in  mind  when  they  wrote  that  in  the  Constitution 
isn't  what's  happening  in  today's  real  world.  So  I  think  that  that's 
a  very  interesting  point. 

I  think  the  other  point  is  we  in  this  country  tend  to  have  cor- 
nered the  creative  market,  not  totally  cornered  it,  but  we  have  a 
phenomenal  amount  of  creativity  generating  out  of  here.  And  if 
after  a  smaller  number  of  years  than  in  other  countries  people  can 
pick  that  up  freely  in  their  country  and  use  it,  that  that's  also 
harming  this  country,  where  the  creators  are  more  apt  to  live.  I 
don't  know  how  you  break  that  out,  but  I  think  I've  seen  numbers 
showing  we've  got  more  creative  little  minds  living  here  on  this 
continent  than  we  have  in  other  places. 

Mr.  Jones.  We  do,  and  I  think  it's  very  ironic  that,  with  the  400- 
or  500-year  history  of  western  music,  out  of  all  the  possibilities — 
bagpipes,  kabuki,  string  quartets,  et  cetera — that  the  youth  of  the 
entire  planet  have  made  the  decision  to  adopt  our  music  as  their 
esperanto,  all  over  the  world.  And  it  always  fascinates  me  to  go  to 
these  places,  even  Tahiti,  and  hear  the  same  records  that  you  hear 
in  New  York  City.  It's  one  of  the  most  powerful  exports  that  we 
have. 

Mrs.  SCHROEDER.  Well,  just  remember  what  Tip  O'Neill  said, 
though,  that  the  Irish  gave  the  bagpipes  to  the  Scotch  as  a  joke 
and  they  never  figured  it  out.  They  thought  it  was  real.  [Laughter.] 

But,  no,  we  thank  you  very,  very  much  for  being  here  this  morn- 
ing  

Mr.  Jones.  Thank  you. 

Mrs.  SCHROEDER  [continuing].  And  appreciate  your  insight. 

Mr.  MOORHEAD.  The  gentleman  from  Virginia. 

Mr.  GOODLATTE.  Thank  you,  Mr.  Chairman. 

Mr.  Jones,  we're  honored  to  have  you  here  with  us  today. 

I  want  to  comment  on  Martin's  comment  about  why  not  forever. 
Martin  neglected  to  state  that  he's  an  accomplished  musician  and 
pianist  in  his  own  right,  and  I'm  sure  he's  happy  to  support  this 
legislation  so  long  as  your  sheet  music  will  remain  competitively 
priced  so  he  can  get  it.  [Laughter.] 

In  asking  that  very  question,  I  support  this  legislation.  I  think 
the  extension  is  important  to  protect  you  and  others  who  are  cre- 
ators of  wonderful  works,  and  we  want  to  encourage  that  creation 
by  allowing  you  get  to  just  recompense  for  your  work,  and  I  think 
that  that  ought  to  carry  on  for  your  children  and  your  grand- 
children as  well. 

I  think  the  reason  why  not  forever  is  that  at  some  point  in 
time — family  trees  tend  to  go  like  this  [indicating],  and  at  some 
point  in  time  the  number  of  ancestors  of  a  great — I  don't  know  how 
many  Tolstoy  has  out  there  today,  but  if  they  all  had  to  get  to- 
gether and  agree  on  how  to  handle  the  rights  to  his  works,  it  might 
have  at  some  point  in  time  a  stifling  effect  on  the  ability  to  pro- 
mote great  works  of  past  centuries,  rather  than  a  positive  effect, 
which  I  think  it  does  for  the  immediate  ancestors. 

I  wonder  if  you  have  any  comments  on  that  thought. 


277 

Mr.  Jones.  Well,  I  can't  think  of  a  situation  where  it  hasn't  been 
worked  out  when  this  type  of  legacy 

Mr.  GrOODLATTE.  But  we  have  a  limit.  If  you  go  back  10  genera- 
tions, you  might  have  200  or  more  heirs  who  would  then  all  be  po- 
tentially, depending  on  how  wills  were  written,  and  so  on,  have  the 
right  to  make  a  decision. 

Let  me  give  you  an  example  outside  of  this  area.  My  wife's  par- 
ents are  both  from  Ireland  and  her  father's  father  owns  a  beautiful 
little  house  that  overlooks — it's  in  Galway  and  it  overlooks  Galway 
Bay  and  it's  just  absolutely  fabulous.  It  sits  there  abandoned.  It's 
a  small  two-room  house.  The  view  is  worth  a  million  dollars,  but 
her  grandfather  had  10  children  and  they've  had  several  children 
each,  and  we're  not  all  that  far  down  the  line,  but  to  figure  out  who 
owns  that  property  and  for  somebody  to  take  control  of  it  and  do 
something  with  it  involves  a  huge  legal  task.  So  at  some  point  in 
time  it  seems  to  me  that  having  an  indefinite  and  unlimited  copy- 
right right  that's  passed  on  forever  creates  these  kind  of  entangle- 
ments that  could  stifle  the  use  of  something  beautiful  rather  than 
promote  it. 

Mr.  Jones.  You're  right,  but  it's  a  still  a  great  concept.  [Laugh- 
ter.] 

Mr.  GrOODLATTE.  Yes,  well,  70  years  won't  do  it.  I  support  the  leg- 
islation, but  I  would  not  support 

Mr.  Jones.  If  we  can  start  with  70,  add  20,  it  would  be  a  good 
start. 

Mr.  GOODLATTE.  We'll  do  it  for  70  years  plus  your  life,  and  you 
won't  have  to  worry  about  it.  [Laughter.] 

Thank  you  very  much,  Mr.  Chairman. 

Mr.  Jones.  Thank  you. 

Mr.  MOORHEAD.  The  gentleman  from  Michigan. 

Mr.  CONYERS.  Thank  you  very  much. 

Quincy  Jones,  it's  a  pleasure  to  have  you  here  and  to  listen  to 
you,  and  I  keep  thinking  about  all  the  impact  you've  had  on  our 
music  and  our  culture. 

And  what  I'm  thinking  about  is  how  we  can  build  a  system  that 
encourages  creativity,  the  creativity  that  you  talk  about  and  that 
has  been  referred  to,  to  be  so  profuse  in  this  country,  because  we're 
now  in  a  time  of  cutbacks.  Our  cultural  system  is  now  being  told 
that  we  don't  need  the  National  Endowment  for  the  Arts;  we  don't 
need  as  much  education  programs.  I  hate  to  tell  you  this.  Some 
have  actually  suggested  abolishing  the  Department  of  Education, 
and  education-wise  we  don't  come  up  too  high  in  industrialized 
countries  of  the  world.  We  have  a  25-percent  rate  of  functional  illit- 
eracy among  adults  in  this  country.  Millions  of  youngsters  in  this 
century  could  have  added  much  to  our  country,  had  they  had  an 
opportunity  to  go  to  school  and  to  go  as  far  as  their  talents  would 
carry  them. 

And  so  in  a  way,  we  need  more  cultural  spokespersons  to  help 
us  understand  that  you  can't  continue  this  stream  of  talent  by  re- 
ducing the  Federal  relationship  to  this.  We  have  to  have — particu- 
larly in  my  favorite  arena,  the  jazz  musicians  have  come  through 
tremendous  obstacles,  the  few  that  have  made  it.  Many,  as  you 
know,  go  unnamed,  unnoticed.  There  was  no  way  they  could  take 
advantage  of  any  royalties;  that  was  out  of  the  question. 


278 

And  so  I  know  that  your  presence  here  helps  in  this  direction  as 
well  as  in  support  of  this  important  bill,  989. 

Mr.  Jones.  Thank  you.  I  think  we're  so — it  goes  back  to  the  ex- 
pression: how  can  I  miss  you  if  you  never  leave?  And  I  think  we 
are  so  rich  in  culture  and  we  do  not  realize — we  take  it  for  granted, 
and  we  don't  realize  how  much  the  culture  plays  a  part  in  our  life. 

I  would  like,  just  out  of  curiosity,  to  see  what  would  happen  if 
America  had  to  experience  2  weeks  with  no  music,  with  no  film,  no 
television,  no  books.  We'll  say  books.  Books  will  always  be  around, 
but  without  a  sound.  Ever3d;hing  from  the  dentist's  office  to  the  ele- 
vators, to  the  radios,  to  television,  to  music,  to  records — there's  a 
total  absence  of  sound.  I  don't  think  we  could  stand  it  because  it 
is  the  food  for  our  soul,  especially  this  country.  That's  why  the 
world  has  adopted  this  music  on  such  a  large  level,  and  it's  one  of 
the  most  important  things.  It  saved  millions  and  millions  of  kids 
from  the  urban  situation,  millions,  and  given  them  a  way  to  see  the 
light. 

Mr.  CONYERS.  And  we  want  to  try  to  make  it  better  than  it  has 
been  in  the  past.  I  mean,  if  we  can't  do  that,  then  we're  not  living 
up  to  our  mandate,  and  I  think  you  have  been  doing  all  you  can 
in  that  area  to  bring  forward  other  young  talents  of  all  disciplines. 

And,  you  know,  you  mentioned  this  next  century  coming  up.  You 
know,  with  digital,  the  telecommunications,  the  recombinations  of 
our  new  technology,  it  is  going  to  make  a  whole  different  kind  of 
playing  field  for  all  of  the  players 

Mr.  Jones.  I  agree. 

Mr.  CONYERS  [continuing].  And  you're  right,  this  is  just 

Mr.  Jones.  I  totally  agree. 

Mr.  CONYERS.  Unless  we  really  begin  to  look  at  this  more  deeply 
than  we  ever  have  before,  we'll  end  up  sliding  backwards  instead 
of  moving  forward. 

Mr.  Jones.  Absolutely.  And  if — we've  been  very  involved,  very, 
very  involved  in  the  conversion  technology,  just  out  of  curiosity  and 
because  of  necessity  really.  This  is  a  place  where — this  is  a  situa- 
tion where  not — reading  and  writing  is  one  thing,  but  a  young  per- 
son that  enters  into  the  21st  century  who  is  not  equipped  to  deal 
with  this  technology  will  be  doomed  before  they  start.  There's  no 
question  about  it. 

And  I've  been  working  with  Allen  Kay,  who's  one  of  the  inventors 
of  Mac  I  and  Mac  II.  He's  the  Apple  fellow.  We've  already  proposed 
them  coming  up  with  another  one  called  Mac  Daddy  III  to  get  the 
kids  interested  in  it,  so  they  won't  think  it's  authoritarianism  or  in- 
stitutionalized. 

It's  very  important  that  everybody  come  to  this  party  because  of 
what's  happening  online,  and  this  technology  will  probably  be  one 
of  the  biggest  changes  in  civilization  since  the  industrial  revolution. 
I'd  bet  my  life  on  it. 

Mr.  CONYERS.  This  subcommittee  was  in  Hollywood  recently 
holding  hearings  on  this  and  related  measures,  and  I  couldn't  help 
but  notice — we  visited  a  couple  of  studios,  and  I  was  very  pleased 
to  see  that  in  some  of  our  meetings  there  were  African-American 
vice  presidents  of  film  companies;  there  was  a  general  counsel.  We 
went  through  one  of  the  lots  on  a  studio,  and  there  was  an  African- 
American  carpenter.  And,  you  know,  it's  only  a  few  years  ago  that 


279 

I  could  remember  when  trying  to  integrate  the  film  industry  and 
the  movie  industry,  television,  and  the  music  industry  was  an 
awful  experience.  I  mean,  the  battles — and  I  don't  mean  to  suggest 
that  it's  over,  but  there  has  been  movement  in  this  direction.  And 
I  think  that  it's  very  important  for  the  country  itself,  and  also  for 
the  creative  experience  that  you've  referred  to  so  much  here. 

Mr.  Jones.  I  agree  with  you,  and  I  appreciate  the  compassion 
and  understanding  and  attention  that's  been  given  this.  It  will 
drive  the  next  century;  there's  no  doubt  about  it. 

Mr.  CONYERS.  Well,  I'm  happy  that  you've  come  here  in  this  re- 
gard, and  I  hope  that  we  will  continue  to  hear  some  of  the  wonder- 
ful contributions  that  you've  made.  You've  now  crossed  over  into 
television  and  other  kinds  of  activity,  but  I  suppose  the  creative 
urge  never  leaves.  I  certainly  hope  it  doesn't  in  your  case. 

Mr.  Jones.  Thank  you. 

I'll  close  with  this.  I  keep  remembering  that  the  entire  entertain- 
ment business  is  about  six  things:  the  song,  the  song,  the  song,  and 
the  story,  the  story,  the  story.  That's  all  it's  about,  the  whole  thing. 
[Laughter.] 

Without  those  two  things,  there's  nothing  to  talk  about.  That's 
what  hires  millions  of  people.  You  don't  call  them,  directors  or  ac- 
tors or  musicians  or  anything,  until  you  have  a  song  or  a  story. 

And  I  think  I  would  appreciate  all  the  support  you  can  give  me, 
NEA,  and  anything  that  fosters  the  arts  in  America,  because  it  is 
part  of  our  heartbeat;  it's  part  of  our  soul,  a  big  part  of  our  soul. 
And  we  dominate  it;  we  really  do.  We  do  it  better  than  anybody  in 
the  world,  all  of  America. 

Mr.  CONYERS.  Yes,  thank  you  very  much. 

Mr.  Jones.  Thank  you. 

Mr.  Gekas  [presiding].  Thank  you,  Mr.  Jones. 

Your  "Eyes  of  Love"  I  think  is  one  of  the  most  exquisite  composi- 
tions of  our  time.  You  continue  now  to  receive  royalties  from  that, 
do  you  not? 

Mr.  Jones.  Yes. 

Mr.  Gekas.  And  you  will  through  the  life  of  the  cop5n'ight  that 
is  now  accorded  you  as  the  composer  of  that  number,  and  the  pric- 
ing of  whatever  use  is  made  of  "Eyes  of  Love"  takes  into  account 
the  royalties  to  be  paid  to  you,  does  it  not?  The  marketplace,  in 
producing,  wherever  it  does,  a  reissuing  or  reproduction  of  "Eyes  of 
Love,"  has  to  price  it  in  such  a  way  that  they  know  that  part  of 
it  has  to  go  to  you,  the  composer;  isn't  that  right? 

Mr.  Jones.  That's  right. 

Mr.  Gekas.  So  the  marketplace  still  works  within  the  confines  of 
the  copyright  world.  The  reason  I'm  asking  that  is,  Beethoven,  the 
example  that  you  gave,  which  is  in  the  public  domain,  itself  is  gov- 
erned by  the  marketplace.  It  appears  from  what  you  tell  us  that 
the  demand  is  still  there  for  Beethoven;  therefore,  the  pricing  can 
be  even  higher  than  for  the  "Eyes  of  Love,"  for  example;  is  that  cor- 
rect? 

Mr.  Jones.  That's  right.  That's  right. 

Mr.  Gekas.  Well,  you  don't  have  any  quarrel  with  that,  do  you? 
You  don't  have  any  quarrel  with  the  fact  that  the  marketplace  still 
gathers  in  a  large  demand  for  Beethoven  or  for  public  domain 


280 

Mr.  Jones.  No,  I  don't  have  any  quarrel  with  that  at  all.  I  just — 
when  we  reduce  the  time  down  to — we're  speaking  in  increments 
of  70  and  80  years,  is  a  big  difference  from  the  500  years.  Bee- 
thoven was,  without  a  doubt,  one  of  the  geniuses  of  our  time,  of 
that  time.  And  I  have  the  same  feeling  that  in  100  years  from  now 
in  America — we  probably  are  the  least  informed  about  our  own 
music — I  promise  you  that  Louis  Armstrong  and  Count  Basie  and 
Duke  Ellington  and  Charlie  Parker  will  be  recognized  as  the  same 
type  of  genius,  because  jazz  is  the  classical  music  of  the  world. 

Mr.  Gekas.  The  only  other  question  I'd  have — I'd  like  to  enlist 
your  aid.  I  wrote  a  piece  a  long  time  ago  for  the  oboe.  [Laughter.] 

Mr.  Jones.  You  did? 

Mr.  Gekas.  I  don't  know  if  the  marketplace  is  going  to  be  able 
to  accept  this.  So  I'll  need  your  help  on  this.  [Laughter.] 

Thanks  very  much. 

Mr.  Jones.  Thank  you. 

Mr.  Gekas.  This  hearing  is  recessed  for  10  minutes. 

[Recess.] 

Mr.  MOORHEAD  [presiding].  Our  first  witness  in  the  third  panel 
will  be  John  Belton,  who  is  a  professor  of  English  and  film  at  Rut- 
gers University.  Professor  Belton  holds  a  bachelor's  degree  from 
Columbia  University  in  Greek  and  Latin,  and  both  a  masters  and 
doctorate  from  Harvard  University  in  classical  philosophy.  He's  the 
former  Chair  of  the  Task  Force  on  Public  Access  and  Education 
Use  of  Motion  Pictures  of  Society  for  Cinema  Studies  and  a  mem- 
ber of  the  Film  Preservation  Hearings  Board  of  the  National  Film 
Preservation  Board,  the  Library  of  Congress.  He's  written  exten- 
sively in  the  area  of  cinema  studies  and  is  here  today  representing 
the  Society  for  Cinema  Studies. 

Welcome,  Professor  Belton. 

Mr.  Belton.  Thank  you. 

Mr.  Moorhead.  Our  second  witness  on  the  third  panel  will  be 
Dennis  S.  Karjala,  professor  of  law  at  Arizona  State  University  Col- 
lege of  Law.  Professor  Karjala  holds  a  bachelor's  degree  from 
Princeton  University  in  electrical  engineering  and  physics,  a  law 
degree  from  the  University  of  California  at  Berkeley,  and  a  doctor- 
ate from  the  University  of  Illinois.  He  teaches  and  researches  copy- 
right law.  He  was  a  Fulbright  Senior  Research  Scholar  at  the  Max 
Planck  Institute  in  Munich,  Germany,  studying  the  implementation 
of  the  European  Union's  directive  on  the  copyright  protection  of 
computer  software. 

Welcome,  Professor  Karjala.  Am  I  pronouncing  that  right? 

Mr.  Karjala.  Karjala.  Thank  you. 

Mr.  Moorhead.  Our  third  witness  on  the  third  panel  is  William 
S.  Patry,  associate  professor  of  law  at  the  Benjamin  N.  Cardozo 
School  of  Law  of  Yeshiva  University.  Mr.  Patry  served  as  counsel 
to  this  subcommittee  and  as  policy  planning  advisor  to  the  Register 
of  Copyrights.  He  is  editor-in-chief  of  the  Journal  of  the  Copyright 
Society  of  the  USA  and  has  written  several  treatises  and  law  re- 
view articles  on  copyright  law. 

Welcome,  Professor  Patry. 

The  fourth  witness  on  the  third  panel  is  Jerome  H.  Reichman, 
who  is  a  professor  of  law  at  Vanderbilt  University  where  he  teach- 
es intellectual  property  law.  Professor  Reichman  holds  a  bachelor's 


281 

degree  from  the  University  of  Chicago  and  a  law  degree  from  Yale 
University.  He  currently  serves  as  chairman  of  the  Intellectual 
Property  Section  of  the  American  Association  of  Law  Schools  and 
is  a  member  of  the  Copyright  Society  of  the  USA.  He  has  served 
as  an  advisor  to  the  Office  of  Technology  Assessment  and  helped 
to  prepare  that  body's  1992  report  to  Congress  on  computer  soft- 
ware and  intellectual  property. 

Welcome,  Professor  Reichman. 

We  have  written  statements  from  our  four  witnesses,  which  I  ask 
unanimous  consent  to  be  a  part  of  the  record.  I  ask  that  you  all 
summarize  your  statements  in  10  minutes  or  less.  All  being  law- 
yers, that's  hard  to  do,  I  know.  [Laughter.] 

I  ask  that  the  subcommittee  hold  their  questions  for  all  four  wit- 
nesses until  they've  completed  their  oral  presentations,  and  we'll 
begin  with  the  testimony  from  Professor  Belton. 

STATEMENT  OF  JOHN  BELTON,  PROFESSOR,  RUTGERS  UNI- 
VERSITY, ON  BEHALF  OF  THE  SOCIETY  FOR  CINEMA  STUD- 
IES 

Mr.  Belton.  Thank  you,  Chairman  Moorhead. 

I  guess  I  should  say  I'm  not  a  lawyer,  so  maybe  I  can  be  briefer 
than  my  colleagues.  I  represent  an  organization  of  academics,  the 
Society  for  Cinema  Studies,  which  teaches  film  and  television  in 
colleges  and  universities  around  this  country. 

First,  I  might  begin  with  prefacing  my  testimony  by  suggesting 
that  there  is  a  very  simple  answer  to  the  question  of  the  day  about 
perpetual  copyright,  and  it  can  be  done  without  increasing  term 
limit.  All  you  have  to  do  is  live  forever. 

One  of  the  points  that  I  think  that  whole  idea  raises  is  the  sort 
of  conformity  with  other  standards  and  terms,  and  so  forth.  And  if 
you  just  think  for  a  minute  about  the  arbitrary  terms  that  come 
with  life-plus-50  or  life-plus-70,  you  realize  that  cop5n-ight  terms 
can  be  very,  very  short.  Think  of  Buddy  Holly,  for  example,  as  op- 
posed to  Irving  Berlin,  a  man  who  died  in  his  twenties,  a  man 
who's  tried  to  live  forever.  And  I  think  these  need  to  be  weighed 
when  we  talk  about  conformity  in  cop3nright  law,  that  there  really 
is  no  conformity  of  term  in  copjrright  law.  But  I'm  speaking  as  a 
lawyer,  so  I  should  stop  that. 

What  I'm  going  to  talk  about  specifically  is  the  proposed  legisla- 
tion as  it  relates  to  works-for-hire;  in  particular,  motion  picture 
and  television  works,  and  I  have  very  little  to  say  about  protection 
for  authors.  The  proposed  legislation  actually  fails  to  distinguish 
between  works  made  for  hire  and  works  protected  by  authors.  It 
awards  a  20-year  extension  to  both  works  produced  by  authors  and 
works  made  for  hire.  One  of  the  reasons  I  think  that  the  20-year 
extension  figure  came  up  was  that  it  would  provide  authors  and 
their  immediate  heirs  for  two  generations  with  extended  copyright 
protection.  Works-for-hire  are  made  by  corporations.  Corporations 
have  a  life  expectancy  that  is  not  determined  by  human  longevity. 
There  is,  therefore,  no  need  to  increase  the  copyright  term  for 
works  made  for  hire  using  the  logic  that's  being  used  for  works  pro- 
duced by  flesh-and-blood  authors. 

One  of  the — I  guess  the  other  issue  that  I  think  needs  to  be  ad- 
dressed when  I'm  talking  about  conformity  is  that  appeals  are 


282 

made  to  the  European  Community  and  the  way  in  which  the  Euro- 
pean Community  has  structured  its  provisions  of  Berne  in  regard 
to  this  new  copyright  procedure.  However,  within  the  European 
Community  works-for-hire,  if  they  exist  at  all — I've  done  some  re- 
search on  this — suggest  to  me  that  cinematic  works  in  England  and 
France,  and  so  forth,  are  protected  for  50  years.  The  United  States, 
actually  with  its  current  legislation,  protects  works-for-hire  for  75 
years.  It  is  in  excess  of  the  European  Community.  I  see  no  point 
in  extending  protection  of  works-for-hire  to  95  years,  given  that 
there  is  no  European  precedent  for  the  95-year  figure.  It  seems  to 
me  that  we're  sort  of  moving  too  fast  in  an  escalation  of  term  ex- 
tensions that  do  not  need  any  further  escalation. 

One  of  our  concerns  is,  again,  speaking  in  kind  of  a  disinterested 
way — in  other  words,  we're  not  copyright  holders;  we  have  no  fi- 
nancial interest  in  the  proposed  legislation,  but  we  are  users  of 
copyrighted  material,  and  there  is  some  question  about  the  impact 
this  will  have  on  the  public  domain.  You'll  hear  extensively,  I 
think,  more  about  theories  of  copyright  law  and  the  delicate  bal- 
ance that  exists  between  a  limited  monopoly  which  protects  the 
copyright  holder  and  eventual  dissemination  and  spread  of  intellec- 
tual ideas  to  the  public,  which  benefits  the  public. 

In  this  term  extension,  there  seems  to  be  no  real  impetus  for  cre- 
ativity, which  is  one  of  the  reasons  that  copyright  protects  authors, 
is  to  spur  their  creativity — in  this  particular  instance,  for  works- 
for-hire.  Authors  may  decide  to  produce  works  to  benefit  their  im- 
mediate heirs  for  several  generations.  A  corporation  does  not  make 
works  with  an  eye  to  some  sort  of  successive  corporation.  The  mo- 
tion picture  industry,  for  example,  has  a  very  short  playoff  of  its 
properties  that  last  from  2  to  5  years. 

This  will  include  theatrical  revenues,  sale  to  cable,  sale  to  video, 
sale  to  network,  and  syndication.  After  that  the  film  becomes  part 
of  their  library  of  works,  one  of  their  assets.  Any  moneys  made 
from  a  motion  picture  while  it  is  in  the  status  of  an  asset  is  pure 
gravy.  This  is  not  the  incentive  which  drives  the  production  of  new 
works.  So  the  logic  that  can  be  used  to  talk  about  the  copyright  law 
as  a  spur  to  creativity  really  does  not  apply  at  all  to  works  made 
for  hire. 

On  the  other  hand,  works  that  fall  into  the  public  domain  become 
a  very  valuable  resource  for  new  creations,  and  this  is  an  argument 
that's  been  made  again,  but  I  will  give  you  one  or  two  examples. 
I  think  one  of  the  most  forceful  copyright  holders  is  the  Disney  Cor- 
poration. Yet,  a  great  majority  of  their  animated  films  are  based 
on  stories  that  come  from  the  public  domain.  You  can  go  back  to 
"Snow  White  and  the  Seven  Dwarves,"  "Pinocchio."  More  recently, 
we  have  "Little  Mermaid,"  "Beauty  and  the  Beast,"  "Aladdin,"  and 
"Pocahontas."  And  without  this  kind  of  well  of  source  material,  a 
kind  of  cultural  matrix  of  property  that  Disney  very  much  needs, 
depends  upon,  these  great  animated  films  of  the  last  few  years 
would  not  have  been  made. 

The  same  thing  could  be  said  for  live  action  films.  Kenneth 
Brannagh  has  made  two  adaptations  of  Shakespeare  films,  "Henry 
V,"  "Much  Ado  About  Nothing."  Martin  Scorsese  has  recently 
adapted  Edith  Wharton's  "Age  of  Innocence,"  and  Agnieszka  Hol- 
land has  done  an  adaptation  of  "The  Secret  Garden,"  and  so  on  and 


283 

so  forth.  "Little  Women"  was  mentioned  earlier.  And  we  have 
Gillian  Armstrong's  recent  version  last  year  of  "Little  Women." 

But  the  real  problem  with  the  term  extension  in  terms  of  the 
way  to  fix  the  public  domain  is  that  in  1976  the  term  was  extended 
19,  20  years,  whatever  it  is.  It's  proposed  that  it  be  extended  again, 
just  as  that  term  is  about  to  run  out.  Will  there  be  yet  another  pro- 
posal within  20  years  when  this  term  is  about  to  run  out?  In  other 
words,  what  kind  of  logic  is  driving  this. 

I  understand  the  desire  of  copyright  holders  is  to  extend  their 
copyright  protection  in  perpetuity,  but,  again,  this  necessarily  must 
be  balanced  against  the,  what  I  would  say,  larger  needs  of  culture, 
which  has  not  been  mentioned  much  here  today;  education,  which 
has  not  been  mentioned  at  all  today.  So  that  the  financial  rewards 
that  come  to  creative  artists,  who  are  actually  casted,  unfortu- 
nately, in  the  role  of  people  who  want  to  make  more  money  out  of 
their  works  rather  than  people  who  are  artists  who  are  creative  be- 
cause they  have  to  be.  So  I  want  to  readdress  this  issue  to  suggest 
that  this  balance  between  financial  rewards  and  our  responsibility 
as  citizens,  the  culture  as  a  whole,  must  necessarily  be  regarded. 

One  of  the  problems  with  granting  extension  of  20  years  to  mo- 
tion pictures  and  television  works  is  that  the  American  film  indus- 
try has  been  a  notoriously  poor  custodian  of  its  copyright  materials. 
Most  of  you  know  that  up  until  1950  over  50  percent  of  all  Amer- 
ican films  perished.  We're  talking  about  a  term  of  extension  that 
sort  of  begins  in  1919  and  goes  to  the  forties  or  something.  If  you 
look  at  that  period  of  silent  films  of  the  twenties,  only  20  percent 
of  all  those  films  survived.  This  is  because  the  studio  said,  "We 
have  sound.  These  silent  films  are  economically  worthless  to  us.  We 
will  junk  them,"  and  that's,  indeed,  what  happened.  These  films 
have  deteriorated  in  studio  vaults  or  been  dumped  in  the  Pacific 
Ocean. 

It's  been  the  public  archive,  on  the  other  hand,  that  has  taken 
the  initiative  over  the  course  of  the  copyright  protection  of  actually 
funding — perhaps  they  shouldn't  have  funded  with  public  funds — 
the  preservation  of  some  of  these  copyrighted  works.  It's  only  been 
in  the  last  10  years,  with  the  advent  of  aftermarkets  of  video  and 
cable,  that  the  motion  picture  industry  has  taken  a  very,  very  ac- 
tive role  in  preserving  its  own  assets. 

One  of  my  concerns  is  preservation  and  access.  I'm  a  member  of 
the  National  Film  Preservation  Board.  And  although  it's  not  appro- 
priate to  talk  about  this  in  the  context  of  copyright,  it  seems  to  me 
that,  if  extended  term  is  to  be  given  to  motion  pictures  and  other 
audiovisual  material,  there  ought  to  be  some  assurance  that  these 
materials  would  not  suffer  the  experience  that  it  had  in  the  past; 
that  it  would  be  preserved,  and  that  there  would  be  reasonable  ac- 
cess to  it. 

As  educators,  our  problem  is  reasonable  access,  and  I  have  a 
whole  document,  anecdotal  evidence  of  just  how  difficult  it  is  to  get 
reasonable  access  to  copyrighted  and  uncopyrighted  materials, 
which  is  in  the  record,  but  it  is  not  trivial,  the  problems  that  are 
faced  by  educators  in  trying  to  pass  on  the  culture  of  the  moving 
image  to  our  students. 

And  I  think  that  the  extension  of  rights  to  copyright  holders  in 
this  particular  instance  is  not  necessarily  going  to  help  us  at  all; 


284 

that  quite  often  the  pubHc  domain  is  in  some  ways— faciUtates  the 
availabiUty  of  certain  kinds  of  films  that's  not  worth  the  studio's 
time  and  effort  to  make  available. 

I  see  my  time's  run  out.  So  I  should  stop  here. 

[The  prepared  statement  of  Mr.  Belton  follows:] 


285 


Prepared  Statement  of  John  Belton,  Professor,  Rutgers  University,  on 
Behalf  of  the  Society  for  Cinema  Studies 

Introduction 

Founded  m  1959,  the  Society  for  Cinema  Studies  is  a  professional 
cr-ranization  of  college  and  university  educators,  filnunakers, 
sc.'.olars,  historians,  and  others  concerned  wiuh  the  study  of  the 
moving  iniage  and  recorded  sound.   Memoership  of  the  Society  currently 
r.urr.bers  xore  than  one  thcusar.d .   Activi-ies  of  the  Society  include 
"he  organization  of  an  annual  conference  that  is  regularly  attended 
cy  over  60C  participants  and  .he  publication  of  Cinema  Journal ,  a 
quarterly  magazine  devotee  to  film  and  television  studies.   The 
Society  has  established  e  number  of  ccmmitTzees  to  deal  with  issues 
related  co  our  field;  these  include  a  moving  image  archive  policy 
committee  and  a  committee  on  the  preservation  and  access  of  film, 
radio,  end  video/television  materials  for  research  and  classroom  use. 
3C3  is  also  an  active  member  cf  the  National  Film  Preservation  Board. 

Comments  and  Rationale 

The  Society  offers  the  following  comments  on  the  proposed  extension 
of  copyright  protection.   These  comments  are  concerned  chiefly  with 
the  proposed  legislation's  application  to  motion  pictures  and  other 
audio-visual  media.   They  seek  to  address  issues  of  term  extension  as 
they  relate  to  works  made  for  hire: 

1.  The  proposed  legislation  fails  to  distinguish  adequately  between 
different  kinds  of  works. 

Copyright  law  has  established  distinctions  between  works  created  by 
individual  authors  and  works  made  for  hire.   .^Vrguments  in  support  of 
this  proposed  legislation  ignore  those  distinctions.   The  principles 
of  authorship  that  prevail  in  other  art  forms,  such  as  painting  and 
literature,  cannot  be  naively  applied  to  the  cinema  and  other  audio- 
visual media.   The  works  of  individual  artists  and  authors  are  being 
considered  for  extended  protection  in  large  part  because  of  the 
hardship  that  surviving  family  members  might  endure  without  continued 
income  from  these  works.   However,  this  argument  cannot  be  applied  to 
works  made  for  hire,  such  as  motion  pictures  and  television  programs, 
which  are  copyrighted  by  large  corporations.   A  corporation  cannot  be 
compared  to  surviving  family  members  nor  can  it  be  said  to  experience 
individual  hardships.   Corporations  are,  by  definition,  not 
individuals  but  collective  entities  established  for  the  pursuit  of 
certain  kinds  of  business  ventures.   The  claim  of  "natural  right"  as 
authors  should  not  be  extended  to  corporations. 

2.  The  proposed  legislation  would  impoverish  the  public  domain  as  a 
source  for  new  works  without  providing  any  clear  compensating 
advantages. 

Copyright  protection  is  designed  to  encourage  creativity  by 


PTi-Ofa    Qfi  _  1  n 


286 


granting  artists  and  authors  a  limited  monopoly;  it  gives  authors 
exclusive  rights  to  exploit  their  own  work.   The  proposed  addition  of 
twenty  years  of  copyright  protection  may  encourage  future  creativity 
on  the  part  of  individual  authors  who  wish  to  provide  a  livelihood 
for  themselves  and  their  immediate  heirs.   Indeed,  one  reason  given 
for  extending  the  term  from  "life  plus  fifty"  to  life  plus  seventy" 
is  the  projected  increase  in  the  human  life  span.   Thus  the  post 
mortem  auctoris  term  of  seventy  years  should  protect  two  generations 
of  descendants.   Again,  the  logic  used  to  arrive  at  the  proposed 
twenty  year  extension  of  present  protection  cannot  be  applied  to 
works  made  for  hire.   Their  "authors"  are  corporations  whose  "life 
span"  is  not  changed  by  increases  in  human  longevity. 

Works  made  for  hire  are  currently  protected  for  a  term  of  seventy- 
five  years.   The  new  legislation  proposes  an  extension  of  twenty 
years  to  give  corporations  a  "limited  monopoly"  of  ninety-five  years. 
The  argument  that  has  been  used  to  support  this  extension  has  been 
the  need  for  international  conformity.   Yet,  since  the  Copyright  Act 
of  1976,  American  works  for  hire  have  enjoyed  a  longer  period  of 
protection  than  their  European  counterparts.   The  Berne  Convention 
established  a  term  of  fifty  years  of  protection  after  publication  for 
cinematographic  works.'  Have  we  suddenly  entered  an  international 
term-extension  race  where  our  seventy-five  has  forced  the  Europeans 
to  abandon  their  fifty  for  a  new  ninety-five?   Is  there  a  reason  for 
the  new  numbers?  On  what  needs  are  they  based? 

The  extension  of  copyright  protection  can  have  no  impact  as  a 
stimulus  for  creativity  in  terms  of  existing  works.   This  argument 
cannot  be  used  to  justify  a  retroactive  term  extension  for  existing 
works.   These  works  already  exist,  produced  under  different 
incentives  and  constraints.   It  is  not  clear  that  the  proposed  change 
for  works  made  for  hire  from  seventy-five  to  ninety-five  years  will 
measurably  increase  creativity.   The  corporations  that  produce  motion 
picture  and  television  programs  operate  on  a  short-term  financial 
basis.   Their  incentive  for  the  publication  of  these  works  is  far 
more  immediate  in  terms  of  rewards.   They  need  to  recoup  their  costs 
and  make  a  profit  during  their  initial  play-off,  which  runs  from 
roughly  two  to  five  years  and  includes  a  film's  initial  theatrical 
release,  its  sale  to  cable,  its  marketing  on  video,  its  sale  to 
network  television,  and  its  syndication.   After  its  initial  play- 
off, a  film  becomes  an  "asset"  in  the  corporation's  library  of 
holdings.   Any  profit  that  it  generates  after  its  initial  play-off  is 
pure  gravy  and  has  little  or  no  relation  to  the  initial  incentives 
which  led  to  its  production. 

The  extension  of  copyright  poses  a  threat  to  the  concept  of  public 
domain,  which  lies  at  the  basis  of  copyright  law.   The  United  States 
Constitution  has  given  Congress  the  power  "to  promote  the  progress  of 
science  and  useful  arts  by  securing  for  limited  times  to  authors  and 
inventors  the  exclusive  right  to  their  respective  writings  and 
discoveries."^  As  the  Supreme  Court  noted,  the  concept  of  a  limited 
monopoly  encourages  and  rewards  creativity  on  the  one  hand  while 
assuring  that  the  work  will  ultimately  enjoy  widespread  public 
availability.'  The  public  domain  is  designed  to  function  as  a  vital 
source  for  new  works.   Indeed,  Disney,  one  of  the  corporations  that 


287 


will  benefit  from  term  extension,  has  based  a  number  of  its  recent 
works  on  public  domain  stories.   This  goes  back,  of  course,  to  Snow 
White  and  The  Seven  Dwarfs  (1937),  but  includes  The  I,it~le  MerT.aid 
(1989),  Beauty  and  tae  Beasi:  (1991),  Alladin  (1992),  and  Pocahantas 
(1995).   Within  the  last  few  years,  Kenneth  Branagh  has  adapted  two 
Shakespeare  plays,  Henry  V  and  Much  Ado  .About  Nothing ;  Martin 
Scorsese  has  brought  Sdith  Wharton's  kae   of  Innocence  to  the  screen; 
Gillian  Armstrong  has  filmed  Louisa  May  Alcott's  Little  Women  (1994), 
and  Anieszka  Holland  has  made  Frances  Hodgson  Burnett's  The  Secret 
Garden  (1993).   Term  extension  will  impoverish  che  public  domain  and 
poses  a  threat  to  the  spirit  of  copyright  law.   In  1976,  terms  were 
extended  and  this  came  at  the  expense  of  the  public  domain.   Just  as 
those  earlier  extensions  are  now  about  to  expire,  it  is  proposed  that 
they  be  extended  yet  again.   Will  additional  term  extensions  be 
proposed  twenty  years  from  now?   Copyright  holders  naturally  wish  to 
extend  their  rights,  but  successive  extensions  of  copyright  terms 
will  undermine--or  perhaps  even  destroy — the  concept  of  public  domain 
and  the  rights  of  the  public. 

3.  The  proposed  legislation  fails  to  consider  the  needs  of  users  of 
copyrighted  material. 

Lengthening  copyright  protection  would  have  a  significant  impact  on 
users  of  copyrighted  and  public  domain  works.   As  educators  and 
scholars,  we  are  concerned  that  this  material  will  be  increasingly 
difficult  to  obtain  for  scholarly  and  classroom  use.   As  part  of  the 
nation's  cultural  heritage,  such  documents  should  be  preserved  and 
studied  by  disinterested  scholars  and  educators  rather  than  hoarded 
by  copyright  owners  who  may  have  little  regard  for  the  public  good. 
If  copyrighted  material  is  never  made  available  for  use,  that 
material  has  effectively  been  repressed  or  censored  by  its  owners. 
This  is  especially  critical  for  motion  picture  and  televisions  works. 

With  the  publication  of  a  book,  copies  are  sold  to  the  public;  some 
copies  are  deposited  in  libraries.   If  that  book  goes  out  of  print, 
copies  continue  to  survive  in  libraries  and  can  be  obtained  by  users 
(via  inter-library  loan  if  your  local  library  does  not  have  it). 
Motion  pictures  and  television  programs  are  not  made  available  in  the 
same  way.   Copies  of  these  works  on  film  are  not  sold.   Nor  are  they 
deposited  at  libraries.   Even  the  Library  of  Congress,  which  once 
required  two  deposit  copies  of  motion  pictures,  now  returns  deposit 
prints  at  the  request  of  the  depositor.   If  motion  pictures  or 
television  programs  have  been  deposited  at  the  Library  of  Congress  or 
at  a  public  archive,  they  can  be  studies  on  the  premises.   But  they 
cannot  be  used  in  the  classroom  or  screened  in  theaters  without  the 
permission  of  copyright  holders. 

Traditionally,  copyright  holders  have  not  readily  make  films  and 
other  materials  available  for  educational  or  scholarly  use.   Or,  if 
access  is  given,  the  costs  involved  have  been  prohibitive.   It  is  not 
cost-effective  for  Hollywood  studios,  television  networks,  and  large 
distributors  of  television  programs  which  make  their  profit  from  the 
mass  market  to  serve  educational  needs.   Consequently,  they 
frequently  refrain  from  providing  educators  with  ready  access  to 


288 


culturally  important  audio-visual  materials.   Hundreds  of  American 
films  'ire  no  longer  available  for  classroom  rental  in  16mm  or  35mm. 
"or  eximpie,  existing  16mm  crpies  cf  Alfred  Hi"C".cccI< '  s  1943  classic 
Shadow  of  a  Doubt  vere  recently  discovered  to  be  some  damaged  chat 
they  had  to  be  destroyed  and  the  distributor  consiiered  it  to  be  too 
expensive  to  strike  new  prints.   However,  small  distribution  outlets 
that  deal  in  public  domain  films  have  learned  how  to  make  a  profit  in 
this  market.   Hundreds  of  little-known  films  that  educators  would 
like  to  jse  in  classrooms  that  will  never  find  their  way  to  16mm 
distribution  or  even  video  if  the  copyright  term  is  extended.   A 
similar  situation  exists  with  regard  to  other  audio-visual  materials. 
The  more  films  that  fall  into  the  public  domain,  the  more  early 
cinema,  silent  films,  and  historically  important,  early  sound  movies 
will  be  available  for  educators  to  use  in  the  classroom. 

Historically,  motion  picture  studios  have  not  been  responsible 
custodians  of  their  property.   Half  of  all  American  films  made  before 
1950  no  longer  exist,  having  been  left  to  deteriorate  in  studio 
vaults.   For  the  last  decade  of  silent  films  (the  1920s),  the 
statistics  are  even  worse:  only  twenty  per  cent  of  these  survive. 
Only  in  the  last  ten  years,  with  the  expansion  of  video  and  cable 
markets,  have  many  of  the  studios  taken  steps  to  preserve  their 
holdings.   This  has  also  been  the  case  for  many  television  networks 
and  large  television  production  companies.   In  the  past,  it  has  quite 
often  been  the  public  archives,  not  the  studios,  that  have  taken  on 
the  task  of  preserving  our  moving  image  heritage.   To  give  the 
studios  an  additional  twenty  years  of  copyright  protection  over 
material  that  many  of  them  have  ignored  for  seventy-five  years  or 
more  is  inappropriate.   If  the  owners  of  works  for  hire  secure  these 
additional  rights,  they  should  at  least  be  required  to  preserve  and 
make  available  all  titles  that  fall  under  this  proposed  legislation. 
As  users  of  copyrighted  material,  scholars  and  educators  remain 
concerned  about  the  preservation  of  and  access  to  these  works.   Any 
new  legislation  should  attempt  to  ensure  that  additional  rights 
copyright  owners  are  accompanied  by  additional  responsibilities  of 
these  owners  to  the  public. 

Even  when  copyright  owners  do  grant  educators  permission  to  use 
their  materials,  they  frequently  set  forth  policies  that  make  access 
text  to  impossible.   They  may  charge  prohibitively  high  rates  or 
establish  unnecessarily  onerous  conditions  for  their  use.   For 
example,  Hollywood  studios  have  often  demanded  exorbitant  fees  or 
unreasonable  conditions  for  the  use  of  stills  and  frame  enlargements 
which  serve  as  evidence  in  scholarly  arguments  and  teaching  tools  in 
textbooks.   In  one  instance.  Paramount  requested  a  payment  of  $20,000 
from  an  educator  for  the  use  of  several  frame  enlargements  in  a 
textbook  published  by  a  university  press.   Columbia  Pictures  has 
cranted  requests  to  reprint  photos  from  its  films  at  exorbitant  terms 
'3500  per  photo)  and  insisted  that  scholars  secure  releases  from  all 
those  depicted  in  the  photo.   In  a  similar  case,  CBS  insisted  that  a 
scholar  publishing  an  essay  in  Cinema  Journal  dealing  with  visual 
style  in  television  soap  operas  secure  releases  from  all  those 
lepicted  in  the  photos.   .As  educators,  we  realize  that  much  of  our 
jse  of  copyrighted  material  is  protected  by  fair  use  provisions  of 


289 


copyright  law.   However,  the  principle  of  fair  use  remains  ambiguous, 
decided  in  court  by  judges  on  a  case-by-case  basis.   Copyright  owners 
tend  to  define  the  principle  of  fair  use  very  narrowly  and  threaten 
those  who  reproduce  even  the  smallest  part  pf  a  copyrighted  work, 
such  as  a  frame  enlargement,  with  expensive  lawsuits.   Given  this 
sort  of  intimidation  and  the  potential  expense  of  going  to  court 
against  large  corporations,  educators  and  university  presses  are 
reluctant  to  test  the  limits  of  fair  use  in  court. 

The  proposed  copyright  extension  also  effects  unpublislied  works, 
such  as  studio  papers,  production  information,  correspondence, 
stills,  and  other  materials.   These  materials  were  to  enter  the 
public  domain  in  2002.   The  new  legislation  proposes  to  shield  tliem 
for  an  additional  ten  years.   Extended  protection  of  these  materials 
will  restrict  future  film  scholarship. 

Conclusion 

Scholars  and  educators  have  unique  problems  which  are  not  addressed 
by  the  proposed  legislation  to  extend  the  period  of  copyright 
protection.   The  proposed  copyright  extension  threatens  to  strengthen 
the  rights  of  copyright  holders  in  ways  which  we  find  to  be 
problematic.   Even  if  term  extension  is  deemed  desirable  for  certain 
works,  it  is  not  necessarily  desirable  for  other  kinds  of  works,  such 
as  motion  pictures  or  television  programs  made  for  hire.   A  copyright 
extension  will  do  little  or  nothing  to  spur  creativity  in  the  making 
of  new  films  and  other  audio-visual  works  and  will  have  an  adverse 
effect  on  the  production  of  new  films  based  on  public  domain  works. 
Most  importantly,  by  limiting  our  access  to  documents  of  cultural  and 
historical  significance  it  will  seriously  hamper  the  mission  of 
educators  as  custodians  and  transmitters  of  our  national  moving  image 
heritage. 

submitted  by  John  Belton 
Notes 

1.  Silkie  von  Lewinski,  "EC  Proposal  for  a  Council  Directive 
Harmonizing  the  Term  of  Protection  of  Copyright  and  Certain  Related 
Rights,"  lie,  23,  No.  6  (1992),  787. 

2.  Quoted  in  "Who  Will  Set  the  Tolls  on  the  Information 
Superhighway,"  unpublished  comments  by  David  Pierce  of  the 
Committee  for  Film  Preservation  and  Public  Access  (November  29, 
1993),  9. 

3.  Twentieth  Century  Music  Corporation  v.  Aiken,  422  U.S.  151,  156 
(1975). 


290 

Mr.  MOORHEAD.  Professor  Karjala. 

STATEMENT  OF  DENNIS  S.  KARJALA,  PROFESSOR  OF  LAW,  AR- 
IZONA STATE  UNIVERSITY,  ON  BEHALF  OF  THE  U.S.  COPY- 
RIGHT AND  INTELLECTUAL  PROPERTY  LAW  PROFESSORS 

Mr.  Karjala.  Thank  you.  I  want  to  thank  the  chairman  and  the 
members  of  the  subcommittee  for  inviting  me  to  testify  today.  I  will 
present  my  views  on  this  legislation  and  those  of  a  great  number 
of  my  academic  colleagues  who  work  and  conduct  research  on  a 
daily  basis  in  the  areas  of  copyright  and  intellectual  property.  Our 
comments  are  based  on  a  familiarity  with  the  subject  matter  and, 
we  believe,  a  sensitive  understanding  of  how  copyright  has  tradi- 
tionally sought  to  balance  competing  public  and  private  interests. 

I'd  like  to  begin  with  a  few  words  about  American  copyright  phi- 
losophy and  tradition.  The  special  genius  of  the  U.S.  copyright  sys- 
tem has  been  its  emphasis  on  an  appropriate  balance  of  these  pub- 
lic and  private  interests.  Our  system  has  been  remarkably  success- 
ful in  promoting  the  creation  of  economically  and  culturally  valu- 
able products,  particularly  in  the  copyright  industries  like  movies, 
music,  and  computer  software.  This  is  shown  by  our  current  domi- 
nant position  in  international  trade  in  these  areas. 

We  should  know,  however,  that  our  dominance  is  primarily  in 
current  products  of  authorship.  Our  system  has  been  phenomenally 
successful  at  continuing  a  supply  of  new  and  valuable  work.  The 
movies  like  "The  Lion  King"  and  the  most  recent  Sylvester  Stallone 
film,  for  example,  generate  vastly  more  revenues,  probably  any  sin- 
gle one  of  those  movies  generates  more  revenues,  than  all  of  the 
works  that  are  the  true  focus  of  this  bill,  which  were  produced  in 
the  1920's  and  1930's.  Nobody  has  the  precise  numbers,  appar- 
ently, but  from  the  numbers  we  heard  this  morning,  that  seems  not 
an  unfair  estimate. 

And  the  creation  of  these  new  products  is  possible  because  of  the 
rich  and  vibrant  public  domain  that  has  been  passed  down  to  us 
and  our  current  creative  authors  from  earlier  authors.  This  valu- 
able source  of  cultural  building  blocks  is  itself  a  product  of  our  sys- 
tem's careful  balance  of  public  and  private  interests.  Our  Constitu- 
tion provides  for  the  protection  of  intellectual  property  for  limited 
times  to  encourage  the  production  of  creative  works.  On  the  other 
hand,  the  longer  exclusive  rights  last  in  a  particular  work,  the 
more  expensive  it  is  for  subsequent  artists  to  create  new  works 
based  upon  it.  And  the  most  important  goal  in  drawing  the  balance 
is  that  of  promoting  the  creation  and  dissemination  of  information. 
This,  in  turn,  depends  on  the  existence  of  a  rich  public  domain  con- 
sisting of  works  on  which  contemporary  authors  can  freely  draw. 

I'm  glad  that  Representative  Conyers  has  returned.  He  expressed 
earlier  this  morning  a  special  concern  for  the  little  guy,  and  I  think 
that's  one  of  the  more  important  people  we're  talking  about.  The 
person  who's  out  there  today  trying  to  create  new  works  needs  and 
wants  a  vibrant  box,  if  you  will,  of  building  blocks  out  of  which  new 
works  can  be  created.  I  think  that  it  is  very  important  to  focus  our 
attention  on  this  difference  between  old  works  and  new  works. 

In  my  opinion,  the  extension  legislation  would  prematurely,  and 
without  compensating  benefit,  abandon  our  traditional  balance  in 
favor  of  a  stronger  emphasis  on  private  interests,  in  particular. 


291 

vested  private  interests.  Europeans  have  long  followed  a  different 
copyright  philosophy  based  on  notions  of  so-called  natural  rights 
rather  than  economic  efficiency  and  overall  social  progress.  We 
should  not  abandon  what  has  worked  for  us  so  well  in  the  past 
simply  to  imitate  an  untried  European  model  that  will  provide  an 
economic  bonanza  to  the  owners  of  a  relatively  small  number  of 
very  old  cop3n-ights  at  a  cost  of  taking  crucial  building  blocks  out 
of  the  hands  of  current  authors. 

We  must  ask  whether  we  really  wish  to  remake  our  cultural  in- 
dustries in  the  image  of  Europe.  We  should  not  make  the  mistake 
of  viewing  the  extension  proposals  as  an  us-against-them  conflict 
between  Europe  and  America.  This,  in  fact,  is  not  a  conflict  be- 
tween Europe  and  the  United  States.  The  real  conflict  in  both 
places  is  between  the  interest  of  the  public  in  a  richer  public  do- 
main and  the  desires  of  copyright  owners,  who  incidentally  may  or 
may  not  be  related  to  the  authors  in  question,  to  control  the  eco- 
nomic exploitation  of  the  works  that  remain  in  their  hands.  That 
Europe  has  resolved  the  conflict  in  one  way  does  not  mean  that  we 
should  blindly  follow  suit. 

Our  written  testimony  details  the  deficiencies  of  the  arguments 
offered  in  support  of  this  extension  legislation.  The  proposed  exten- 
sion would  supply  no  additional  incentives  to  the  creation  of  new 
works  and  it,  obviously,  supplies  no  incentive  to  the  creation  of 
works  already  in  existence.  Moreover,  the  notion  that  copyright  is 
supposed  to  be  a  welfare  system  to  two  generations  of  descendants 
has  never  been  a  part  of  American  copyright  philosophy,  nor  has 
anyone  made  any  showing,  in  fact,  that  life  plus  50  years  is  insuffi- 
cient to  sustain  a  revenue  stream  through  two  generations. 

In  addition,  so-called  harmonization  with  European  law  would,  in 
any  event,  not  be  achieved  by  this  legislation,  even  with  respect  to 
length  of  term,  much  less  with  respect  to  other  fundamental  dif- 
ferences like  moral  rights  and  fair  use.  Nor  is  the  so-called  unequal 
treatment  of  U.S.  copjrright  owners  in  Europe  a  ground  for  mimick- 
ing a  bad  European  move  that  favors  the  owners  of  a  few  old,  but 
economically  valuable,  copyrights  over  the  interests  of  the  general 
public.  It  is  not  unfair  that  a  work  enter  the  public  50  years  after 
the  death  of  the  author.  Rather,  that's  an  integral  part  of  the  social 
bargain  on  which  our  highly  successful  system  has  always  been 
based.  In  fact,  the  works  in  question  here,  which  were  produced  in 
the  1920's  and  1930's,  have  already  received  one  19-year  extension 
from  the  original  56-year  term  promised  to  their  authors.  After 
suppl5dng  a  royalty  stream  for  such  a  long  time,  now  75  years, 
these  old  works  should  be  available  as  bases  on  which  current  au- 
thors can  continue  to  create  culturally  and  economically  valuable 
products. 

We  already  have  a  balance  of  public  and  private  interests  that 
protects  works  of  authorship  for  a  very  long  time.  As  I  said  earlier, 
there's  no  tension  here  between  Europe  and  America.  The  tension 
is  between  the  heirs  and  assignees  of  copyrights  in  old  works  ver- 
sus the  interests  of  today's  general  public  in  freer  competition, 
lower  prices,  and  a  greater  supply  of  new  work.  Europe  has  re- 
solved the  tension  in  favor  of  the  owners  of  old  copyrights;  we 
should  rather  favor  the  general  public. 

Thank  you. 


292 

[The  prepared  statement  of  Mr.  Karjala  follows:] 

Prepared  Statement  of  Dennis  S.  Karjala,  Professor  of  Law,  Arizona  State 
University,  on  Behalf  of  the  U.S.  Copyright  and  Intellectual  Property 
Law  Professors 

INTRODUCTION 

The  proposed  legislation  (H.R.  989)  would  extend  the  term  of  copyright  protection  for 
all  copyrights,  including  copyrights  on  existing  works,  by  20  years:  For  individual  authors,  the 
copyright  term  would  extend  for  70  years  after  the  death  of  the  author,  while  corporate  authors 
would  have  a  term  of  protection  of  95  years.  Unpublished  or  anonymous  works  would  be 
protected  for  a  period  of  120  years  after  their  creation.  The  legislation  would  also  extend  the 
copyright  in  works  that  may  be  as  old  as  our  Republic  or  even  older  but  that  were  never 
published  prior  to  1978  (when  these  works  were  first  brought  into  the  federal  copyright  system). 
Initially,  these  copyrights  would  be  extended  by  another  10  years  (to  the  year  2013),  and  if  the 
copyright  owners  publish  the  works  prior  to  2013,  copyrights  in  these  already  ancient  works 
would  continue  in  force  until  the  year  2047. 

We  believe  that  enactment  of  this  legislation  would  impose  substantial  costs  on  the  United 
States  general  public  without  supplying  any  public  benefit.  It  would  provide  a  windfall  to  the 
heirs  and  assignees  of  authors  long  since  deceased,  at  the  expense  of  the  general  public,  and 
impair  the  ability  of  living  authors  to  build  on  the  cultural  legacy  of  the  past.  In  following  a 
European  model  of  regulation  and  rigidity,  it  would  hinder  overall  United  States  competitiveness 
in  international  markets,  where  the  United  States  is  currently  at  its  most  powerful.  We  therefore 
conclude  that  it  would  be  a  mistake  to  extend  any  of  the  copyright  terms  of  protection. 

SUMMARY  OF  ARGUMENT 

Various  reasons  have  been  offered  in  support  of  the  extension  proposal:  Some  say  that 
the  extension  is  necessary  as  an  incentive  for  the  creation  of  works.  Some  argue  that  the  current 
period  for  individual  authors— 50  years  after  the  death  of  the  author-was  intended  to  provide  an 
income  stream  for  two  generations  of  descendants  and  that  the  longer  human  life  span  now 
requires  a  longer  copyright  term.  Some  maintain  that  we  should  adopt  an  extended  term  because 
the  countries  of  the  European  Union  have  done  so,  in  order  to  "harmonize"  our  law  with  theirs. 
Some  claim  that  the  longer  copyright  term  is  necessary  to  prevent  royalty  inequality  between 
United  States  and  European  copyright  owners. 

None  of  these  arguments  take  into  consideration  the  costs  to  the  United  States  public  of 
an  extended  copyright  term.  Moreover,  the  arguments  are  either  demonstrably  false  or  at  best 
without  foundation  in  empirical  data.  If  incentives  were  the  issue,  there  would  be  no  need  to 
extend  the  copyrights  on  existing  works,  even  if  one  were  to  accept  the  dubious  proposition  that 
the  extra  20  years  provide  an  incentive  for  the  creation  of  new  works.  If  we  were  worried  about 
two  generations  of  individual  descendants,  we  should  prohibit  the  first  generation  from  selling 
the  copyright  outright,  and  we  would  have  no  need  to  extend  the  term  for  corporate  authors. 
If  we  believe  in  harmonization,  it  is  in  any  event  not  achieved  under  the  proposed  legislation  nor 
does  supposed  royalty  inequality  provide  a  basis  for  extending  the  term.  The  discussion  below 
shows  the  failure  of  these  arguments  in  detail.  It  also  shows  that  the  costs  to  the  United  States 
general  public  vastly  exceed  even  the  gains  to  those  relatively  few  copyright  owners  who  would 

Written  Testimony  of  Intellecmal  Property  Professors 

Page  1 


293 


benefit  from  the  extension  and  that  the  general  public  itself  would  receive  no  compensating 
benefits. 

Once  the  errors  in  the  argtmients  for  increasing  the  term  have  been  exposed,  the  real 
reason  for  the  legislation  becomes  clear:  The  maintenance  of  royalty  revenues  from  those 
relatively  few  works  from  the  1920's  and  1930's  that  continue  to  have  significant  economic 
value  today.  The  continued  payment  of  these  royalties  is  a  wealth  transfer  from  the  United 
States  public  to  current  owners  of  these  copyrights.  These  copyright  owners  are  in  most  cases 
large  companies  and  in  any  case  may  not  be  descendants  of  the  original  authors  whose  works 
created  the  revenue  streams  that  started  flowing  many  years  ago.  To  our  knowledge,  no  one  has 
made  a  study  of  just  how  great  this  wealth  transfer  would  be,  although  it  is  clearly  large  enough 
to  generate  fervent  support  for  the  proposed  legislation  by  performing  rights  societies,  film 
studios,  and  other  copyright  owners  in  economically  valuable  works  whose  copyrights  are 
otherwise  due  to  expire  in  the  next  few  years. 

The  works  about  to  enter  the  public  domain,  absent  this  legislation,  were  created  in  1920. 
At  that  time  and  for  many  years  thereafter,  society's  "bargain"  with  the  actual  authors  was  a 
period  of  exclusive  rights  under  copyright  for  a  maximum  of  56  years.  Those  authors  produced 
and  published  their  works  with  the  understanding  that  the  works  would  enter  the  public  domain 
56  years  later.  Yet,  notwithstanding  that  bargain,  the  period  was  extended  by  19  years  in  1976 
to  75  years,  as  were  the  terms  of  all  copyrights  acquired  after  1920.  Now,  19  years  later,  these 
same  copyright  owners  have  remmed  seeking  yet  another  extension  to  continue  the  wealth 
transfer  for  another  20  years,  without  supplying  any  evidence,  or  even  any  arguments,  that  the 
public  will  benefit. 

This  wealth  transfer  from  the  United  States  general  public  to  copyright  owners  is, 
moreover,  only  a  part-probably  a  small  part—of  the  total  cost  that  we  and  coming  generations 
will  bear  if  the  extension  is  adopted.  It  is  important  to  remember  that  the  extension  would  apply 
to  foreign  as  well  as  United  States  works.  Therefore,  in  order  to  maintain  a  flow  of  revenue 
to  the  owners  of  United  States  copyrights,  the  general  public  will  continue  to  pay  on  foreign 
copyrights  from  the  1920's  whose  terms  must  also  be  extended.  No  one  has  shown  that  there 
will  even  be  a  net  international  inflow  of  royalties  from  the  works  at  issue. 

Even  worse,  to  maintain  the  royalty  revenues  on  those  few  works  from  this  period  that 
have  continued  economic  viability,  the  copyrights  must  be  extended  on  all  works.  This  includes 
letters,  manuscripts,  forgotten  films  and  music,  out-of-print  books,  and  much  more,  all  potential 
sources  on  which  current  authors  and  scholars  can  base  new  works.  Copyrights  can  and  usually 
do  have  very  complicated  multiple  ownership  so  many  years  after  an  author's  death.  The 
transaction  costs  of  negotiating  for  use  can  be  prohibitively  high,  even  for  works  that  no  longer 
have  economic  value.  None  of  the  arguments  for  extension  take  into  consideration  the  loss  to 
both  revenue  and  culture  represented  by  the  abseiKe  of  new  popular  works  that  are  not  created 
because  underlying  works  that  would  have  served  as  a  foundation  remain  under  the  control  of 


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a  copyright  owner.  By  definition,  this  loss  can  never  be  known,  but  that  makes  it  no  less  real 
or  substantial. 

The  creation  of  new  works  is  dependent  on  a  rich  and  vibrant  public  domain.  Without 
good  reason  to  expect  a  substantial  compensating  public  benefit,  we  should  not  risk  tying  the 
hands  of  current  creative  authors  and  making  them  less  competitive  in  domestic  and  international 
markets  just  to  supply  a  financial  windfall  to  owners  of  copyrights  in  works  created  long  ago. 
Just  as  Santa  Claus  and  the  Easter  Bunny  are  part  of  the  public  domain  that  anyone  can  use 
every  Christmas  and  Easter  season,  so  eventually  should  Mickey  Mouse  and  Bugs  Bunny  also 
join  our  freely  available  cultural  heritage.  That  is  a  crucial  part  of  the  copyright  "bargain"  that 
the  public  made  at  the  time  these  works  were  created. 

We  recommend  that  the  proposed  legislation  be  rejected.  The  issue  is  certainly  an 
important  one,  but  the  legislation  is  premature  at  best  where  there  has  been  no  empirical 
demonstration  of  a  public  benefit  and  no  thorough  exploration  of  alternative  approaches. 

UNITED  STATES  COPYRIGHT  POUCY 

Both  Congress  and  the  courts  have  uniformly  treated  United  States  copyright  law  as  an 
instrument  for  promoting  progress  in  science  and  the  arts  to  provide  the  general  public  with 
more,  and  more  desirable,  creative  works: 

The  limited  scope  of  the  copyright  holder's  statutory  monopoly,  like  the  limited 
copyright  duration  required  by  the  Constitution,  reflects  a  balance  of  competing 
claims  upon  the  public  interest:  Creative  work  is  to  be  encouraged  and  rewarded, 
but  private  motivation  must  ultimately  serve  the  cause  of  promoting  broad  public 
availability  of  literature,  music,  and  the  other  arts.  The  immediate  effect  of  our 
copyright  law  is  to  secure  a  fair  return  for  an  "author's"  creative  labor.  But  the 
ultimate  aim  is,  by  this  incentive,  to  stimulate  artistic  creativity  for  the  general 
public  good.' 

United  States  copyright  tradition  is  in  this  respect  philosophically  different  from  that  of  many 
other  coimtries  that  treat  intellectual  property  as  natural  rights  of  individual  creators.  Under  our 
system.  Congress  need  not  recognize  intellectual  property  rights  at  all,  but  if  it  does,  the  purpose 
must  be  to  promote  innovation  in  science  and  the  useful  arts. 

Our  system  of  copyright  protection  is  delicately  balanced.  We  recognize  exclusive  rights 
in  creators  so  that  consumers  have  available  an  optimal  number  and  quality  of  works  but  want 
those  rights  to  be  no  stronger  than  necessary  to  achieve  this  goal.^   We  do  not  recognize  new 


I.  Twentieth  Century  Music  Corp.  v.  Aiken.  422  U.S.  151,  156  (1975)(footnotes  omitted). 

2  1  P.  Goldstein,  Copyright  §  1 . 1 .  at  6-7. 

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intellectual  property  rights,  or  strengthen  old  ones,  simply  because  it  appears  that  a  worthy 
person  may  benefit;  rather,  we  do  so  only  for  a  public  purpose  and  where  it  appears  that  there 
will  be  a  public  benefit.  The  current  statutory  foundation  of  copyright  protection,  the  Copyright 
Act  of  1976,  is  itself  the  product  of  lengthy  debate  and  represents  innumerable  compromises  that 
seek  to  achieve  the  proper  balance  between  private  returns  to  authors  and  public  benefit, 
including  a  broad  public  domain  that  permits  current  authors  to  build  on  the  cultural  heritage 
from  those  who  have  come  before  them. 

We  are  aware  of  no  effort  by  the  proponents  of  this  extension  legislation  to  show  that  the 
public  benefits  from  its  enactment  would  outweigh  the  costs.  Indeed,  they  have  demonstrated 
no  public  benefit  whatsoever  and  have  barely  attempted  to  do  so.  Yet,  the  public  cost  in  the 
form  of  a  diminished  public  domain  is  obvious.^  As  we  demonstrate  below,  this  public  cost  is 
not  offset  by  any  increased  incentive  to  create  new  works,  nor  does  international  trade  in 
intellectual  property  rights  fill  the  gap  between  public  costs  and  public  benefits. 

Europe,  whose  copyright  law  is  based  more  on  a  natural  rights  tradition,  has  recently 
moved  to  a  life  +  70  regime  for  individual  authors  and  a  70-year  period  of  protection  for 
corporate  authors.  That  should  not  cause  us  to  change  our  underlying  intellectual  property 
philosophy.  Nor  does  it  provide  a  reason  for  avoiding  the  careful  cost/benefit  analysis  called 
for  by  that  philosophy.  The  United  States  joined  the  Berne  Convention  for  many  good  reasons, 
one  of  which  was  to  become  an  influential  leader  in  world  intellectual  property  policy.  Our 
underlying  policy  has  served  us  well,  as  shown  by  our  dominant  position  in  the  worldwide 
markets,  particularly  for  music,  movies,  and  computer  software.  Rather  than  following  Europe 
we  might  better  seek  to  persuade  Europeans  that  our  approach  to  intellectual  property  rules  both 
rewards  creativity  and  promotes  economic  efficiency. 

In  the  following  sections  we  consider  in  some  detail  the  arguments  put  forward  in  support 
of  the  extension.  We  fu-st  show  the  very  real  and  substantial  costs  to  the  public  that  would  result 
from  adoption  of  this  legislation— costs  that  are  ignored  by  the  arguments  of  its  proponents.  We 


The  proponents  of  the  extension  could  at  least  have  considered  less  drastic  means  of  achieving  their 
asserted  goals.   They  might  have  proposed,  for  example,  a  'no  injunction'  regime  SO  years  after  the 
author's  death,  which  could  provide  a  continuing  royalty  to  the  owners  of  copyrights  in  economically 
valuable  works  (at  the  expense  of  the  public)  but  would  at  least  permit  current  and  future  authors  to  use 
all  old  works.  50  years  after  their  authors'  deaths,  in  creating  new  ones.   The  proponents  might  also 
have  considered  a  reversion  of  all  rights  in  the  extended  term  to  the  descendants  of  the  individuals  who 
created  the  work,  whether  in  a  work-for-hire  situation  or  not.   Or  they  might  have  suggested  at  least 
prospective  limitation  of  the  work-for-hire  term  to  70  years,  in  the  interest  of  harmonizing  our  law  with 
that  of  Eim)pe.   The  law  professors  who  have  signed  this  testimony  are  not  in  agreement  about  whether 
any  such  limitations  might  temper  their  objections  to  the  bill.  The  absence  of  any  sign  that  measures  of 
this  type  have  even  been  considered,  however,  shows  that  the  proponents  of  the  extension  have  not 
concerned  themselves  with  the  public  cost  of  their  proposal.   Congress,  as  representative  of  all  the 
people  and  not  just  the  special  interests  whose  voices  are  loudest,  must  seek  to  maintain  an  appropriate 
balance  by  very  carefully  weighing  the  costs  against  the  purported  benefits. 

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then  go  on  to  show  that  the  arguments  in  favor  are  either  logically  fallacious  or  unsupported  by 
any  plausible  evidence. 

COSTS  OF  A  LONGER  PROTECTION  PERIOD 

While  the  asserted  public  benefits  of  an  extended  copyright  protection  period  range  from 
speculative  to  nonexistent,  two  identifiable  costs  are  real  and  substantial:  The  first  is  the 
economic  transfer  payment  to  copyright  owners  during  the  period  of  the  extension  from 
consumers  or  other  producers  who  would  otherwise  have  free  use  of  works.  The  second  is  the 
cost  to  the  public  of  works  that  are  not  produced  because  of  the  diminished  public  domain. 

Economic  Costs  and  Transfers 

The  direct  economic  costs  of  a  20-year-longer  period  of  protection,  although  difficult  to 
calculate  precisely,  includes  higher  cost  to  the  consuming  public  for  works  that  would  otherwise 
be  in  the  public  domain.  That  these  costs  are  substantial  is  shown  by  the  very  claims  of  the 
proponents  of  this  legislation  that  they  will  miss  out  on  the  European  windfall  if  we  do  not 
extend  our  term  to  that  of  Europe.  This  windfall  does  not  arise  out  of  whole  cloth.  Rather,  it 
is  ultimately  paid  by  consumers,  that  is,  by  the  general  public.  And  if  Europeans  will  be  paying 
for  the  right  to  use  United  States  works  in  Europe,  the  United  States  public  will  be  paying  for 
the  right  to  use  both  United  States  and  European  works  here  at  home,  increasing  the  windfall 
to  copyright  owners  at  the  expense  of  United  States  consumers. 

In  the  legislative  history  of  the  Copyright  Act  of  1976,  it  was  argued  that  the  general 
public  received  no  substantial  benefit  from  a  shorter  term  of  protection,  because  the  cost  for 
works  in  the  public  domain  was  frequently  not  significantly  lower  than  that  for  works  still  under 
copyright.''  Even  without  the  fervor  of  the  special  interest  protagonists  of  this  legislation, 
however,  economic  theory  tells  us  that  the  price  to  the  public  for  popular  works  must,  through 
competition,  decrease  to  the  marginal  cost  of  producing  the  work  if  there  are  no  exclusive  rights. 
If  the  work  is  under  copyright,  the  marginal  cost  of  production  would  have  to  include  the  royalty 
owing  to  the  copyright  owner,  even  if  there  is  general  licensing  to  competing  producers  of  the 
work.  Moreover,  if  there  is  no  general  licensing  of  a  copyright-protected  work,  the  price  can 
be  expected  to  be  set  at  the  level  that  maximizes  the  return  of  the  copyright  owner,  which  is 
invariably  higher  than  the  marginal  cost  of  production.  Consequently,  any  claim  that  the  public 
pays  the  same  for  public  domain  works  as  for  protected  works  is  implausible,  at  least  in 
general/  Educational  and  scientific  uses  would  also  seem  to  be  large  markets  for  public  domain 


H.R.  Rep.  No.  94-1476,  94th  Cong.,  2d  Sess.  133  (1976). 

Of  course,  the  market  for  many  public  domain  works  may  often  be  small,  with  the  result  that 
competition  is  thin,  or  even  nonexistent.  This  can  allow,  say,  a  book  publisher  to  charge  a  price  for  a 
republished  public  domain  work  that  is  consistent  with  prices  for  similar  types  of  books  that  are  under 
copyright.  Given  the  thin  market,  such  a  price  may  be  necessary  for  this  publisher  even  to  cover 

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works.  At  a  time  of  rising  educational  costs  we  should  inquire  into  the  effect  on  our  schools 
of  a  reduced  public  domain  due  to  an  extended  protection  period.  Something  more  than 
anecdotal  evidence  should  be  presented  before  we  accept  the  claim  that  the  consuming  public 
will  not  incur  higher  costs  from  the  longer  period. 

Cost  of  a  Diminished  Public  Domain 

An  even  more  important  cost  to  the  public  is  that  paid  in  desirable  works  that  are  not 
created  because  of  the  continuing  copyright  in  underlying  works: 

More  than  a  nodding  acquaintance  with  the  concept  of  public  domain  is 
essential  to  comprehension  of  intellectual  property  law  and  the  role  of  the  United 
States  Congress  in  creating  that  law.  The  addition  of  a  creation  to  the  public 
domain  is  an  integral  part  of  the  social  bargain  inherent  in  intellectual  property 
law.* 

While  primary  control  over  the  work,  including  the  rights  to  refuse  publication  or  republication 
and  to  create  derivative  works,  properly  remains  in  the  author  who  has  created  it,  giving  such 
control  to  distant  descendants  of  the  author  can  deprive  the  public  of  creative  new  works  based 
on  the  copyright-protected  work.  Artistic  freedom  to  make  creative  derivative  works  based  on 
public  domain  works  is  a  significant  public  benefit,  as  shown  by  musical  plays  like  Les 


production  costs  (including  a  noimal  return).  This  does  not  mean  that  the  public  domain  status  is 
irrelevant,  because  if  a  royalty  were  required  in  addition,  such  a  book  might  not  be  republished  at  all. 

It  may  also  be  that  the  works  in  question  are  not  public  domain  works  but  rather  derivative  works 
based  on  public  domain  works.    A  new  derivative  work  is,  of  course,  itself  copyright  protected  and  can 
be  expected  to  sell  at  the  same  price  that  the  public  pays  for  other  protected  works  in  that  category.    In 
this  case,  continued  copyright  protection  for  the  underlying  work  may  require  sharing  of  the  profits 
generated  by  the  new  work,  with  no  economic  benefit  to  the  public  in  the  form  of  a  lower  net  price. 
As  there  is  also  no  net  economic  cost  to  the  public,  however,  the  economic  effect  of  lengthening  the 
protection  period  requires  identification  of  the  parties  sharing  the  monopoly.   One  of  those  parties  is, 
by  hypothesis,  the  new  author,  whose  creativity  has  resulted  in  the  new  derivative  work.   The  other 
will  be  the  owner  of  the  copyright  in  the  underlying  work,  who  may  or  may  not  be  distant  descendants 
of  the  original  author.   In  this  case,  true  concern  for  authors  would  seem  to  favor  not  lengthening  the 
protection  period. 

Finally,  as  discussed  below,  when  the  underlying  work  remains  under  copyright,  the  real  cost  to  the 
public  may  come  from  those  new  derivative  works  that  are  not  created  because  of  the  new  author's 
inability  to  negotiate  permission  from  whoever  owns  the  copyright  SO  years  after  the  original  author's 
death. 

Robert  W.  Kastenmeier  &  Michael  J.  Remington,  The  Semiconduaor  Chip  Protection  Aa  of  1984:  A 
Swamp  or  Firm  Ground?,  70  Minn.  L.  Rev.  417,  459  (1985);  see  also  Peter  Jaszi,  When  Works 
Collide:  Derivative  Motion  Pictures,  Underlying  Rights,  and  the  Public  Interest,  28  U.C.L.A.  L.  Rev. 
715,  804-05  (1981). 

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Miserables,  Jesus  Christ  Superstar,  and  West  Side  Story,  as  well  as  satires  like  Rosencrantz  and 
Guildenstem  are  Dead  and  even  literary'  classics  like  James  Joyce's  Ulysses.  Although  these 
might  not  necessarily  be  considered  infringing  derivative  works  even  if  the  underlying  work 
were  under  copyright,  or  might  be  excused  by  the  fair  use  doctrine  if  otherwise  infringing,  their 
authors  must  necessarily  take  a  cautious  approach  if  a  license  is  unavailable.  When  copyright 
subsists  long  after  an  author's  death  and  there  is  no  provision  for  compulsory  licensing,  the 
creation  of  derivative  works  that  closely  track  a  substantial  part  of  the  underlying  work  can  be 
absolutely  prohibited  by  copyright  owners  who  have  no  creative  relationship  with  the  work  at 
all.  Authors  of  histories  and  biographies  can  also  be  inhibited  from  presenting  independent 
analyses  of  earlier  authors  and  their  works  by  descendants  who,  for  whatever  personal  reason, 
use  copyright  to  prevent  the  publication  of  portions  of  protected  works. 

An  important  cost  paid  by  the  public  when  the  copyright  term  is  lengthened,  therefore, 
is  contraction  of  the  public  domain.  The  public  domain  is  the  source  from  which  authors  draw 
and  have  always  drawn.'  The  more  we  tie  up  past  works  in  ownership  rights  that  do  not  convey 
a  public  benefit  through  greater  incentive  for  the  creation  of  new  works,  the  more  we  restrict 
the  ability  of  current  creators  to  build  on  and  expand  the  cultural  contributions  of  their  forebears. 
The  public  therefore  has  a  strong  interest  in  maintaining  a  rich  public  domain.  Nobody  knows 
how  many  creative  works  are  not  produced  because  of  the  inability  of  new  authors  to  negotiate 
a  license  with  current  copyright  holders,  but  there  is  at  least  anecdotal  evidence  that  the  number 
is  not  insubstantial.^  Unless  evidence  is  provided  that  a  life  +  70  regime  would  provide  a 
significant  added  incentive  for  the  creation  of  desirable  works,  the  effect  of  an  extension  may 
well  be  a  net  reduction  in  the  creation  of  new  works. 

This  point  may  be  highlighted  by  the  rapid  developments  now  occurring  in  digital 
technologies  and  multimedia  modes  of  storing,  presenting,  manipulating,  and  transmitting  works 
of  authorship.  Many  multimedia  works  take  small  pieces  of  existing  works  and  transform  them 
into  radically  different  combinations  of  images  and  sounds  for  both  educational  and  entertainment 
purposes.  The  existing  protection  period,  coupled  with  termination  rights,  may  well  be 
distorting  or  inhibiting  the  creation  of  valuable  multimedia  works  because  of  the  transaction  costs 


See  generally  Jessica  Litman,  The  Public  Domain,  39  Emory  L.J.  965  (1990);  David  Lange, 
Recognizing  the  Public  Domain,  44  L.  &  Contemp.  Probs.  147  (1981).   For  an  argument  that  copyright 
is  also  intended  to  accommodate  users'  rights,  see  L.  Ray  Patterson  &  Stanley  W.  Lindberg,  The 
Nature  of  Copyright  (1991),  which  includes  a  Foreword  by  former  Congressman  Kastenmeier. 

Nearly  50  yean  ago  Professor  Cbafce  pointed  to  examples  in  which  the  veto  power  of  copyright  in  an 
author's  descendants  deprived  the  public  of  valuable  works.   Chafee,  Reflections  on  the  Law  of 
Copyright:  II,  45  Colum.  L.  Rev.  719  (1945).   There  have  been  press  reports  of  refusals  by  the  estate 
of  Lorenz  Hart  of  permission  to  use  Hart's  lyrics  to  any  biographer  who  mentions  Hart's  homosexuality 
and  of  censorship  by  the  husband  of  Sylvia  Plath  of  the  work  of  serious  biographers  who  wish  to  quote 
her  poetry.   Professor  Jaszi  has  provided  examples  of  derivative-work  films  whose  continued 
distribution  has  been  limited  or  even  suspended  because  of  conflicts  with  the  owner  of  the  copyright  in 
the  underlying  work.   Peter  Jaszi,  supra  note  6,  at  739-40. 

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involved  in  negotiating  the  number  of  licenses  required.  Ultimately,  the  rapid  changes  in  the 
intellectual  property  environment  for  creating  and  disseminating  works  may  necessitate  a 
reassessment  by  the  international  community  of  the  underlying  intellectual  property  rules.  In 
the  meantime,  extending  the  protection  period  can  only  exacerbate  this  problem.  The  United 
States  should  be  leading  the  world  toward  a  coherent  intellectual  property  policy  for  the  digital 
age  and  not  simply  following  what  takes  place  in  Europe. 

REBUTTAL  OF  ARGUMENTS  IN  FAVOR  OF  THE  EXTENDED  COPYRIGHT  TERM 

Incentives  for  the  Creation  of  Works 

It  does  not  follow  that  a  longer  term  automatically  drives  creative  authors  to  work  harder 
or  longer  to  produce  works  that  can  be  enjoyed  by  the  public.  Indeed,  there  is  necessarily  a  type 
of  diminishing  return  associated  with  an  ever-longer  protection  period,  because  the  benefit  to  the 
author  must  be  discounted  to  present  value.    As  Macaulay  observed  over  150  years  ago: 

[T]he  evil  effects  of  the  monopoly  are  proportioned  to  the  length  of  its 
duration.  But  the  good  effects  for  the  sake  of  which  we  bear  with  the  evil  effects 
are  by  no  means  proportioned  to  the  length  of  its  duration.  .  .  .  [I]t  is  by  no 
means  the  fact  that  a  posthiunous  monopoly  of  sixty  years  gives  to  an  author 
thrice  as  much  pleasure  and  thrice  as  strong  a  motive  as  a  posthumous  monopoly 
of  twenty  years.  On  the  contrary,  the  difference  is  so  small  as  to  be  hardly 
perceptible.  ...  [A]n  advantage  that  is  to  be  enjoyed  more  than  half  a  century 
after  we  are  dead,  by  somebody,  we  know  not  by  whom,  perhaps  by  somebody 
unborn,  by  somebody  utterly  unconnected  with  us,  is  really  no  motive  at  all  to 
action.  .  .  .' 

Thus,  while  an  additional  year  of  protection  has  little  or  no  incentive  effect  at  the  time  of  a 
work's  creation,  the  costs  are  immediate  and  substantial  if  the  extension  is  to  apply  to  existing 
works,  as  provided  in  the  proposed  legislation. 

The  copyright  industries  are  by  their  nature  very  risky,  and  no  one  in  these  industries 
makes  fmancial  decisions  based  on  even  50-year,  let  alone  70-year,  projections.  Moreover, 
under  the  United  States  Copyright  Act,  most  transfers  of  copyright  by  an  individual  author  may 
be  terminated  35  years  after  the  grant. '°  The  existence  of  these  inalienable  termination  rights 
in  individual  United  States  authors  makes  it  even  more  unlikely  that  anyone  would  pay  more  to 


8  Macaulay,  Works  (Trevelyan  ed.  1879)  199,  quoted  in  Chafee,  Refleaions  on  the  Law  of  Copyright: 
II,  45  Colum.  L.  Rev.  719  (1945),  requoted  in  R.  Gonnan  &  J.  Ginsburg,  Copyright  for  the  Nineties 
307  (4th  ed.  1993). 


17   U.S.C.A.  §  203. 


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exploit  a  work  under  the  extended  term  than  would  be  paid  under  the  current  life  +  50  period." 
The  extension,  therefore,  holds  little  promise  of  fmancial  benefit  to  individual  authors. 

The  absence  of  any  additional  incentive  for  corporate  authors  from  the  extension  of  the 
copyright  period  to  95  years  is  also  easily  seen.  Consider  an  assured  $1,000  per  year  stream 
of  income.  At  a  discount  rate  of  10%,  the  present  value  of  such  a  stream  for  75  years  is 
$10,992,  while  the  present  value  of  a  95-year  stream  is  $10,999,  a  difference  of  less  than  0. 1  % . 
Even  at  a  5%  discount  rate,  the  present  values  are  only  $20,485  and  $20,806,  respectively,  a 
difference  of  about  1.5%.  And  these  minuscule  present  value  differences  are  for  guaranteed 
streams  of  income.  When  risk  is  factored  into  the  analysis,  the  present  value  of  a  75-year 
stream  and  that  of  a  95-year  stream  must  be  considered  essentially  identical.  The  chance  that 
a  given  copyright  will  still  have  nontrivial  economic  value  75  years  after  the  work  is  created  is 
very  small—only  a  tiny  fraction  of  all  works  retain  economic  value  for  such  a  long  time.  No 
company  will  take  the  "extra"  20  years  into  consideration  in  making  a  present  decision  to  invest 
in  the  creation  of  a  new  work.  In  fact,  an  ongoing  successful  company  like  Disney  is  more 
likely  to  be  spurred  to  the  creation  of  new  works  like  The  Lion  King  or  The  Little  Mermaid 
because  it  realizes  that  some  of  its  "old  reliable"  moneymakers,  like  Mickey  Mouse,  are  about 
to  enter  the  public  domain. 

It  is  therefore  extremely  unlikely  that  an  additional  20  years  of  protection  tacked  onto  the 
end  of  a  copyright  protection  period  that  is  already  very  long  will  act  as  an  incentive  to  any 
current  author  to  work  harder  or  longer  to  create  works  he  or  she  (or  it)  would  not  have 
produced  in  any  event.  What  is  certain,  however,  is  that  such  an  extension  of  the  copyright 
term  would  seriously  hinder  the  creative  activities  of  future  as  well  as  current  authors. 
Consequently,  the  only  reasonable  conclusion  is  that  the  increased  term  would  impose  a  heavy 
cost  on  the  public-in  the  form  of  higher  royalties  and  an  impoverished  public  domain— without 
any  countervailing  public  benefit  in  the  form  of  increased  authorship  incentives. 

Indeed,  if  incentives  to  production  were  the  basis  for  the  proposed  extension,  there  would 
be  no  point  in  applying  it  to  copyrights  in  existing  works.    These  works,  by  definition,  have 


No  human  author  can  possibly  receive  anything  more  in  exchange  for  terminable  rights  in  his  or  her 
work  under  a  life  +  70  regime  than  under  the  current  life  +  50  regime.   The  reason,  quite  simply,  is 
that  no  purchaser  of  copyright  rights  will  pay  anything  for  the  "extra"  20  years  of  the  term,  because 
those  supposed  extra  years  can  be  freely  terminated,  along  with  whatever  remains  of  the  current  period, 
before  they  ever  begin.   An  exception  is  the  right  to  continued  exploitation  of  derivative  works,  which 
cannot  be  terminated.  Even  in  this  case,  however,  the  maximum  "extra"  value  to  the  transferring 
author  is  the  present  value  difference  between  a  50-year  and  a  70-year  protection  period.   Even  for 
guaranteed  income  streams,  this  difference  is  around  5.4%  (at  an  assumed  5%  discount  rate).   That  is, 
a  guaranteed  income  stream  of  $1,000  per  year  for  50  years  has  a  present  value  of  $19,256  while  the 
same  stream  for  70  years  has  a  present  value  of  $20,343.   The  purchaser  of  the  derivative  work  right, 
however,  will  not  be  willing  to  pay  anything  close  to  this  difference  in  present  value,  because  of  the 
overwhelmingly  high  risk  thai  the  derivative  work  created  pursuant  to  the  purchased  right  will  have  an 
economic  life,  like  most  works,  far  less  than  even  the  50  years  now  afforded. 

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already  been  produced.  Yet,  if  the  extension  were  purely  prospective  (i.e.,  applicable  only  to 
new  works),  we  could  be  certain  that  support  for  it  would  wither  rapidly.  Thus,  the  real  issue 
is  the  continued  protection  of  old  works--not  those  that  will  enter  the  public  domain  50  (or  70) 
years  from  now  but  rather  those  due  to  enter  the  public  domain  today.  These  works  were 
originally  published  in  1920  (works  published  before  1978  have  a  flat  75-year  copyright  rather 
than  the  current  life  +  50  for  individual  authors).  At  that  time,  the  law  afforded  a  maximum 
of  56  years  of  copyright  protection.  This  period  was  expanded  to  75  years  in  1976,  and  now 
the  descendants  and  assignees  of  these  authors  want  yet  another  20  years.  The  very  small 
portion  of  these  works  that  have  retained  economic  value  have  been  producing  royalties  for  a 
full  75  years.  In  order  to  continue  the  royalty  stream  for  those  few  copyright  owners,  the 
extension  means  that  all  works  published  after  1920  will  remain  outside  the  public  domain  for 
an  extra  20  years.  As  a  result,  current  authors  who  wish  to  make  use  of  any  work  from  this 
period,  such  as  historians  or  biographers,  will  need  to  engage  in  complex  negotiations  to  be  able 
to  do  so.  Faced  with  the  complexities  of  tracking  down  and  obtaining  permission  from  all  those 
who  by  now  may  have  a  partial  interest  in  the  copyright,  a  hapless  historian  will  be  tempted  to 
pick  a  subject  that  poses  fewer  obstacles  and  annoyances. 

Copyright  in  Works  Never  Published  Prior  to  1978 

Until  the  effective  date  of  the  Copyright  Act  of  1976,  works  that  had  never  been 
published  were  protected  under  the  various  state  copyright  statutes.  Only  published  works  were 
governed  by  the  federal  statute.  However,  the  1976  Act  preempted  state  protection  for 
unpublished  as  well  as  published  works  and,  as  a  quid  pro  quo  for  the  loss  of  perpetual  state 
copyright  protection,  recognized  a  copyright  in  these  previously  unpublished  works  until  the  year 
2003.  As  an  incentive  to  publication  of  these  works,  the  current  law  also  extends  their 
copyrights  until  the  year  2027,  provided  they  are  published  prior  to  2003.  The  proposed 
legislation  would  extend  these  periods  by  10  and  20  years,  respectively,  so  that  a  previously 
unpublished  work  will  be  protected  until  2013  and,  if  published  prior  thereto,  it  will  remain 
under  copyright  until  the  year  2047. 

An  example  is  the  recently  discovered  fragment  from  a  draft  of  Mark  Twain's 
Huckleberry  Finn.  The  copyright  on  the  published  novel  was  registered  in  1884,  renewed  by 
Twain's  daughter  in  1912,  and  expired  in  1940.  Even  if  a  life  +  70  system  had  been  in  place 
at  the  time  of  the  work's  creation,  the  copyright  would  have  expired  in  1980,  along  with 
everything  else  Marie  Twain  wrote  (because  he  died  in  1910).  Because  this  story  of  Huckleberry 
Finn  and  Jim  in  the  cave  has  now  been  published,  however,  current  law  recognizes  the  copyright 
until  2027.  Under  the  proposed  extension,  the  copyright  on  this  story,  already  over  110  years 
old,  will  continue  until  the  year  2047. 

We  are  not  aware  of  any  arguments  in  support  of  these  particular  extensions  of  the 
copyright  period  of  protection.  In  contrast  to  the  Mark  Twain  fragment,  most  of  these  works 
have  only  scholarly  value,  because  if  they  were  readily  available  and  had  economic  value,  they 
would  already  have  been  published.    Moreover,  many  of  these  works  are  truly  aiKient-letters 

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and  diaries  from  the  founding  fathers,  for  example~and  constitute  a  vital  source  of  original 
material  for  historians,  biographers,  and  other  scholars. 

Obviously,  the  normal  copyright  incentive  to  creative  authorship  is  not  involved  here. 
This  is  simply  an  incentive  to  current  owners  of  copyrights  in  very  old  works  to  find  the  works 
and  publish  them  so  that  they  will  be  accessible  to  everyone.  By  the  year  2003  we  will  already 
have  afforded  the  very  distant  descendants  of  the  authors  of  these  works  25  years  of  protection, 
plus  the  possibility  of  50  years  of  protection  if  they  find  and  publish  the  works.  Twenty-five 
years  is  enough  time  for  these  owners  to  accomplish  the  ministerial  tasks.  These  unpublished 
works  should  be  allowed  to  go  into  the  public  domain  in  2003,  so  that  others  will  then  have  an 
incentive  to  find  and  publish  them. 

Finally,  even  as  to  such  of  these  works  that  are  published  prior  to  2003,  we  can  think 
of  no  argument,  whether  founded  in  natural  law  or  otherwise,  to  support  extending  their  term 
of  protection  until  2047.  Fifty  years  of  copyright  protection  for  such  old  works,  in  favor  of 
people  who  have  no  creative  relationship  with  the  works  at  all,  is  more  than  enough. 

Support  for  Two  Generations  of  Descendants 

It  is  also  argued  that  the  copyright  protection  period  was  initially  designed  to  provide  a 
source  of  income  to  two  generations  of  descendants  of  creative  authors.  Given  the  longer  life 
spans  of  today,  the  argimient  goes,  a  longer  term  is  necessary  to  achieve  this  goal. 

Far  from  requiring  longer  copyright  terms  to  compensate  for  longer  life  expectancies, 
these  actuarial  changes  could  be  an  argument  for  keeping  the  current  term  of  life  +  50,  or 
perhaps  even  reducing  it,  because  the  longer  life  expectancy  of  the  author  automatically  brings 
about  a  longer  period  of  copyright  protection.  A  longer  overall  life  expectancy,  moreover,  does 
not  in  itself  imply  that  the  second  generation  loses  anything  in  comparison  with  earlier  eras.  The 
crucial  age  for  the  second  generation  is  not  the  absolute  number  of  years  grandchildren  may  be 
expected  to  live  but  rather  the  number  of  years  they  survive  after  the  author's  (i.e.,  their 
grandparent's)  death.  The  copyright  period  is  measured  from  the  death  of  the  author,  and  if 
grandchildren  are  living  longer,  so  too  are  authors  themselves.  Certainly  no  one  has  provided 
data  to  show  that  grandchildren  of  today  have  significantly  longer  life  expectancies  than  today's 
grandparents,  let  alone  20  years  longer.  Consequently,  we  should  expect  the  current  cohort  of 
authorial  grandchildren  to  remain  alive  for  roughly  the  same  length  of  time  after  their 
grandparents'  deaths  as  at  other  times  in  this  century. 

Second,  protection  of  two  generations  of  descendants  is  not  the  inevitable  result  hi  a 
longer  protection  period.  The  copyright  in  a  work  that  has  been  exploited  and  become  popular 
will  often  have  been  transferred  by  the  author  or  her  descendants.  Any  termination  rights  with 
respect  to  the  work  will  have  already  been  exercised  before  the  descendants  in  question  here  ever 


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come  into  the  copyright  picture.'^  It  is  very  likely  that  the  copyright  will  have  been 
retransferred  after  any  termination  before  the  current  life  +  50  year  period  has  expired.  Unless 
these  transfers  provide  for  a  continuing  royalty,  there  will  be  no  royalties  for  the  author's 
descendants  who  are  alive  thereafter.  Moreover,  even  if  the  transferee  is  under  obligation  to  pay 
a  continuing  royalty,  it  cannot  be  assumed  that  the  royalty  stream  will  accrue  to  distant  relatives 
of  the  original  author,  such  as  great-grandchildren.  The  royalty  may  well  be  transferred  outside 
the  family,  by  will  or  otherwise,  by  earlier  descendants.  If  sustenance  to  two  generations  of 
authorial  descendants  is  really  the  goal,  we  should  be  considering  prohibitions  on  transfers 
and/or  stronger  termination  rights  rather  than  a  longer  term  of  protection. 

Third,  even  the  "natural  law"  argument  on  behalf  of  such  distant  descendants  of  authors 
is  very  weak.  These  equitable  claims  to  a  continued  income  stream  obviously  diminish  with 
increasing  temporal  distance  of  descendants  from  the  creative  author.  More  important,  while 
one  can  understand  the  desire  of  authors  to  provide  a  substantial  estate  to  their  immediate 
offspring,  one  must  question  the  economic  efficiency  of  a  system  that,  as  a  matter  of  policy, 
seeks  to  grant  an  easy  flow  of  income  to  a  group  of  people  the  majority  of  whom  the  actual 
author  may  never  have  known.  The  descendants  themselves  would  probably  be  better  off,  and 
certainly  the  general  public  would  be  better  off,  if  they  were  to  engage  in  some  productive 
activity.  United  States  copyright  policy  is  not  and  has  never  been  designed  as  a  welfare  system. 
It  is  therefore  not  entirely  flippant  to  say  to  these  distant  descendants  of  creative  authors  who 
died  50  years  ago  what  many  now  say  to  current  welfare  recipients:    "Get  a  job! " 

Fourth,  while  the  Directive  in  the  European  Union  mentions  protection  for  two 
generations  of  descendants  as  one  of  twenty-seven  "Whereas"  grounds  for  the  extension  in 
Europe,"  it  has  never  been  recognized  as  a  goal  of  United  States  copyright  law.  Indeed,  today's 
longer  life  expectancies  were  offered  as  a  basis  for  the  recent  substantial  extension  of  the 
copyright  term  in  1976,  from  56  years  to  life  -I-  50  years,  without  any  mention  of  a  "two 
generation"  goal. '"  Surely  life  expectancies  have  not  increased  since  1976  to  justify  an  additional 
20  years  of  protection  on  this  ground.  Going  to  our  current  life  -I-  50  system  was  necessary  in 
order  for  the  United  States  to  join  the  Berne  Convention,  and  one  could  at  least  make  a  coherent 
argument  that  the  benefits  of  joining  Berne  might  outweigh  the  costs  of  the  diminished  public 
domain  resulting  from  the  longer  copyright.  The  "two  generation"  argument,  however,  is 
devoid  of  any  relationship  to  a  public  benefit.  We  therefore  question  whether  such  a  claim 
comports  with  basic  United  States  copyright  principles  and  the  social  bargain  that  places  works 
in  the  public  domain  after  the  copyright  has  expired. 


12.  Termination  rights  accrue  35  years  after  a  grant  by  an  author  and  expire  40  years  thereafter.   Because 
the  extra  20  years  that  would  be  added  by  the  extension  to  the  protection  period  begin  SO  years  after 
the  author's  death,  all  termination  rights  with  respect  to  any  authorial  transfer  will  either  have  been 
exercised  or  have  expired. 

13.  Council  Directive  93/98/EEC  (Oct.  29,  1993). 

14.  H.R.  Rep.  No.  94-1476,  94th  Cong.,  2d  Sess.  133-34  (1976). 

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Finally,  even  if  "two  generations  of  descendants"  were  a  valid  basis  for  extending  the 
copyright  term  for  works  of  individual  authorship,  it  provides  no  justification  whatsoever  for 
extending  the  term  for  corporate  authors  from  75  to  95  years. 

We  conclude  that  the  "two  generation  of  descendants"  argument  is  invalid  on  its  face, 
advocates  economic  inefficiency,  fails  to  comport  with  basic  United  States  copyright  principles, 
and  is  applicable  at  best  to  the  term  for  individual  authors.  It  cannot  serve  as  a  basis  for  the 
diminished  public  domain  that  the  extension  would  effect. 

"Harmonization "  with  European  Law 

The  European  Union  has  now  directed  its  members  to  adopt  a  life  +  70  term  of 
copyright  duration.  Possibly  because  of  the  European  namral  rights  tradition,  neither  the 
proposal  in  Europe  nor  its  adoption  was  based  on  a  careful  analysis  of  the  public  costs  and 
benefits  of  extending  the  term.  Nevertheless,  some  argue  that  we  must  do  the  same  to  "protect" 
United  States  copyright  owners,  against  whom  the  "rule  of  the  shorter  term"  may  be  used  to 
provide  a  shorter  period  of  protection  in  Europe  for  United  States  works  (life  +  50)  than  is 
given  to  European  works  (life  +  70).  They  also  argue  that  harmonization  of  the  worldwide  term 
of  protection  is  a  desirable  goal  in  its  own  right  and  that  failure  to  adopt  the  European  term  will 
have  an  adverse  effect  on  the  United  States  balance  of  international  trade.  We  first  consider  the 
general  harmonization  goal  and,  in  the  next  sections,  take  up  the  question  of  the  supposed 
"prejudice"  United  States  copyright  owners  and  the  balance  of  trade  would  suffer  in  Europe  were 
we  not  to  follow  the  European  example. 

Harmonization  of  worldwide  economic  regulations  can  often  be  useful,  especially  if 
differences  in  legal  rules  create  transaction  costs  that  inhibit  otherwise  beneficial  exchanges.  In 
some  cases  harmonization  can  be  beneficial  even  if  the  uniform  rule  is  in  some  sense  less  than 
ideal.  Thus,  a  uniform  fu-st-to-file  rule  for  patents  might  make  sense  even  if  we  believe  that  a 
first-to-invent  rule  is  better  in  the  abstract,  because  otherwise  United  States  inventors-the  very 
people  whom  we  are  hoping  to  encourage  through  the  offer  of  a  patent  monopoly—might  fmd 
it  too  burdensome  to  seek  international  protection.  In  that  case  the  uniform  rule  goes  to  the  very 
existence  of  the  patent  and  not  simply  an  extension  of  the  duration  of  protection.  We  need  not, 
however,  seek  uniformity  for  its  own  sake,  if  it  means  compromising  other  important  principles. 
If  the  United  States  determines  that  works  should  belong  to  the  public  domain  after  life  +  50 
years,  no  transaction  cost  problem  is  posed  to  United  States  authors  by  the  longer  period  in 
Europe.  The  ultimate  owners  of  their  copyrights  will,  of  course,  be  able  to  exploit  them  for  a 
shorter  period,  in  both  Europe  and  the  United  States,  but  that  is  the  result  of  our  policy  choice 
to  make  the  worics  freely  available  and  not  because  of  the  absence  of  harmonization. 

In  addition,  even  if  harmonization  is  desirable,  the  question  remains,  who  should 
harmonize  with  whom?  Although  doubts  were  expressed  about  the  constitutionality  of  a  life  -I- 


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50  year  period  of  protection  at  the  time  the  Copyright  Act  of  1976  was  adopted, '^  that  standard 
could  then  accurately  be  denominated  international'*  and  was  in  any  event  necessary  if  we  were 
ever  to  join  Berne.  Life  +  70  years  is  not  an  international  standard  today,  notwithstanding 
recent  actions  in  the  European  Union,  nor  will  it  become  one  without  United  States  support. 
It  was  not  even  the  standard  in  Europe  until  the  European  Council  of  Ministers  directed  that  its 
member  states  adopt  a  uniform  term  of  protection  equal  to  the  longest  of  any  of  its  members. 
If  the  cost/benefit  analysis  required  by  our  copyright  tradition  does  not  justify  changing  the 
social  policy  balances  we  have  drawn,  we  might  better  use  our  influence  to  encourage  the  rest 
of  the  world  to  remain  with  our  standard,  and  Europe  to  return  to  it,  rather  than  follow  a 
decision  in  Europe  that  was  made  without  consideration  of  the  factors  we  have  always  deemed 
crucial  to  the  analysis. 

Moreover,  the  proposed  legislation  is  not  really  aimed  at  harmonizing  United  States  and 
European  law.  It  would,  for  example,  extend  the  copyright  period  for  corporate  "authors"  to 
95  years  <or  120  years  if  the  work  is  unpublished).  The  European  Union,  by  contrast,  now 
offers  corporate  authors,  for  countries  recognizing  corporate  "authorship,"  70  years  of 
protection,  which  is  less  than  the  75  years  we  currently  offer  such  authors.  Consider  also  the 
works  of  Sir  Arthur  Conan  Doyle,  who  died  in  1930  and  whose  works  have  since  1981  been  in 
the  public  domain  in  England  (and  Europe).  Because  works  Hrst  published  before  1978  have 
a  75-year  period  of  protection  rather  than  the  current  life  +  50  term,  those  works  of  Conan 
Doyle  published  in  the  1920's  remain  under  United  States  copyright.  Thus,  production  in  this 
country  of  public  domain  collections  of  his  entire  works  is  prohibited,  although  Europeans  may 
do  so  freely.  Because  his  last  work  was  apparently  published  in  1927,'''  it  is  scheduled  to  go 
into  the  United  States  public  domain  at  the  end  of  the  year  2002.  The  extension  would  continue 
this  "disharmony"  until  the  year  2022. 

There  are  many  other  features  of  copyright  law  that  are  not  "harmonized"  even  within 
Europe,  let  alone  between  Europe  and  the  United  States,  including  moral  rights  and  the 


15.  E.g.,  14  Omnibus  Copyright  Revision  Legislative  History,  House  Hearings  1975  (Part  1)  133-34,  141- 
42  (testimony  of  Irwin  Goldbloom,  Deputy  Assistant  Attorney  General,  Civil  Division,  Depanment  of 
Justice).   Some  believe  that  special  constitutional  problems  arise  from  an  extension  of  the  period  of 
protection  for  works  already  under  copyright,  because  it  recaptures  from  the  public  domain  works  that 
should  be  freely  available  under  the  'bargain'  made  at  the  time  the  work  was  created  and  offers  no 
countervailing  public  benefit.  They  argue  that  the  constitutional  term  "limited  times'  must  be 
interpreted  in  terms  of  the  constitutional  goal  to  promote  the  progress  of  science  and  the  useful  arts. 

16.  E.g.,  id.  at  108  (testimony  of  Barbara  Ringer,  Register  of  Copyrights);  id.  at  120  (testimony  of  Joel 
W.  Biller,  Secietaiy  for  Commercial  Affairs  and  Business  Activities,  Department  of  State). 

17.  The  Advemure  of  the  Veiled  Lodger  was  published  on  January  22,  1927,  and  The  Adventure  of 
Shoscombe  Old  Place  was  published  on  March  5,  1927.   Robert  Bun  de  Waal,  The  Worid  Biography 
of  Sherlock  Holmes  and  Dr.  Watson  13,  23  (1974).   This  same  source  lists  other  Conan  Doyle  stories 
as  having  been  published  in  1921,  1922,  1923,  and  three  each  in  1924  and  1926. 

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important  United  States  concept  of  fair  use.    "Harmonization"  is  therefore  not  in  itself  a  valid 
ground  for  extending  any  of  our  current  copyright  protection  terms. 

Unequal  Treatment  of  United  States  Copyright  Owners 

In  addition  to  lengthening  the  copyright  term  for  individuals  to  life  +  70  years,  the 
European  Union  has  adopted  the  "rule  of  the  shorter  term,"  under  which  works  are  protected 
only  for  the  shorter  of  the  European  term  or  the  term  in  the  country  in  which  the  work 
originates.  Therefore,  it  is  true  that  retaining  our  current  term  of  protection  would  deny  some 
United  States  copyright  owners  (mainly  companies  rather  than  individuals)  the  financial  benefit 
of  this  European  windfall.  But  the  mere  fact  that  the  European  Union  has  adopted  a  bad  idea 
does  not  mean  that  the  United  States  should  follow  suit.  France  might  elect  in  the  future,  for 
example,  to  give  the  works  of  Voltaire  or  Victor  Hugo  perpemal  copyright  protection,  but  that 
would  be  no  reason  for  us  to  do  the  same  with  Mark  Twain  or  Emily  Dickinson.  The  European 
copyright  tradition,  as  we  have  noted,  differs  in  important  ways  from  that  of  the  United  States, 
primarily  by  treating  copyright  as  a  kind  of  natural  entitlement  rather  than  a  source  of  public 
benefit.  The  European  approach  may  on  balance  tend  to  discourage,  rather  than  promote,  new 
artistic  creativity.  We  should  not,  therefore,  assume  that  a  policy  giving  a  few  United  States 
firms  and  individuals  an  added  financial  windfall  from  works  created  long  ago  necessarily  is  one 
that  promotes  our  long-term  competitiveness  in  the  production  of  new  works. 

This  extension  proposal  is  perhaps  an  occasion  to  consider  the  special  character  of  United 
States  copyright  and  the  features  that  distinguish  our  law  from  its  continental  counterparts.  The 
constimtional  concept  of  a  limited  term  of  copyright  protection  is  based  on  the  notion  that  we 
want  works  to  enter  the  public  domain  and  become  part  of  the  common  culmral  heritage.  It  is 
worth  noting  that  in  this  century  United  States  cultural  productivity  and  international  market 
share  has  been  much  greater  than  that  of  Europe.  The  genius  of  the  American  system  is  that 
it  balances  public  and  private  rights  in  such  a  way  as  to  provide  a  rich  collective  source  on 
which  to  base  new  and  valuable  productions.  This  makes  us  wealthier  not  only  culturally  but 
in  a  hard-nosed  economic  sense  as  well. 

We  must  ask  whether  we  really  wish  to  remake  our  cultural  industries  in  the  image  of 
Europe.  This  is  not,  in  fact,  a  conflict  between  Europe  and  the  United  States.  The  real  conflict, 
in  both  Europe  and  the  United  States,  is  between  the  interest  of  the  public  in  a  richer  public 
domain  and  the  desires  of  copyright  owners  (who  may  or  may  not  be  relatives  of  authors)  to 
control  economic  exploitation  of  the  copyright-protected  works  that  remain  in  their  hands.  That 
Europe  has  resolved  the  conflict  one  way  does  not  mean  that  we  should  blindly  follow  suit. 

The  arguments  for  maintaining  a  rich  public  domain  in  the  United  States  are  not 
diminished  by  the  withdrawal  of  works  from  the  public  domain  in  Europe,  or  even  by  the  partial 
withdrawal  of  only  "European"  works.  If  Europe  protects  "its"  copyright  owners  for  a  life  -I- 
70  year  period,  its  public  domain  is  reduced,  and  the  European  general  public  suffers  a  net  loss. 
The  United  States  public,  however,  as  opposed  to  individual  copyright  owners,  is  not  harmed 

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by  the  absence  of  protection  in  Europe  50  years  after  the  death  of  a  United  States  author. 
Conversely,  the  public  will  pay  a  real  cost,  both  as  consumers  and  as  potential  creators  of  new 
works,  to  the  extent  the  public  domain  is  further  reduced  by  the  longer  protection  period. 

It  should  be  borne  in  mind  that  we  are  no  longer  talking  about  authors,  whether  European 
or  American,  of  the  works  that  would  remain  protected  for  the  extra  20  years.  Those  authors 
will  have  been  dead  for  50  years.  We  are  talking  about  current  authors,  however,  who  create 
new  and  valuable  works  based  on  the  public  domain.  If  the  underlying  work  is  unprotected  in 
Europe  as  well  as  in  the  United  States,  those  new  United  States  derivative  work  creators,  as 
authors,  will  reap  the  kind  of  economic  benefits  in  both  jurisdictions  for  which  copyright  is 
indisputably  designed.  There  is  real  culmral  value  in  allowing  works  to  become  part  of  the 
conunon  heritage,  so  that  other  creative  authors  have  the  chance  to  build  on  those  conunon 
elements. 

In  this  context,  therefore,  the  notion  of  international  "harmonization"  simply  obfiiscates 
the  real  issue:  There  is  no  tension  here  between  Europe  and  the  United  States.  The  tension, 
rather,  is  between  the  heirs  and  assignees  of  copyrights  in  old  works  versus  the  interests  of 
today's  general  public  in  lower  prices  and  a  greater  supply  of  new  works.  Europe  has  resolved 
the  tension  in  favor  of  the  owners  of  old  copyrights.  We  should  rather  favor  the  general  public. 

ITie  Balance  of  Payments 

We  have  conceded  that  certain  United  States  copyright  owners  will  receive  royalty 
payments  from  European  users  for  a  shorter  period  than  will  European  copyright  owners  from 
European  users,  if  the  United  States  does  not  follow  Europe  in  extending  the  copyright  term. 
It  does  not  follow,  however,  that  this  will  have  any  net  negative  effect  on  the  United  States 
balance  of  trade,  even  in  the  short  term  and  much  less  over  the  longer  term. 

Increasing  the  term  in  the  United  States  means  not  simply  that  European  users  will  pay 
longer.  It  also  means  that  United  States  users  will  pay  longer,  and  not  just  to  United  States 
copyright  owners  but  also  to  owners  worldwide.  Works  that  are  about  to  enter  the  public 
domain  were  created  in  1920,  and  wliile  Europeans  may  take  more  of  our  current  worlu  than 
we  take  of  theirs,  that  is  not  necessarily  true  of  works  from  the  1920's  and  1930's.  Our  use 
of  European  works  of  classical  music  and  plays  as  well  as  art  works'  from  this  era  may  outweigh 
the  use  Europeans  make  of  United  States  works  from  the  same  period.  Short  term  balance-of- 
trade  analysis  therefore  requires  an  investigation  of  whether  our  use  of  such  works  that  would 
remain  protected  under  the  proposed  extension  would  cost  more  than  we  would  receive  in  return. 

Moreover,  a  shorter  term  of  protection  in  the  United  States  will  encourage  rather  than 
discourage  the  production  of  new  works  for  worldwide  markets.  We  roust  recall  that  the  public 
domain  is  the  source  of  many  of  our  finest  and  most  popular  works.  The  United  States  market 
is  itself  so  large  that,  with  both  European  and  United  Sutes  works  in  the  public  domain  here  SO 
years  after  the  author's  death,  it  alone  serves  as  a  strong  creation  incentive.    If  the  new  woric 

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is  based  on  a  United  States  work  that  is  also  unprotected  in  Europe,  that  new  work  should  be 
a  part  of  the  continuing  United  States  export  engine  in  the  world  market.  Even  if  the  new  work 
is  based  on  a  European  work  that  remains  under  protection  in  Europe,  popularity  of  the  work 
in  the  United  States  will  necessarily  result  in  a  license  (to  use  the  underlying  work)  in  Europe, 
again  with  a  net  export  gain  to  the  United  States. 

The  argument  that  United  States  copyright  owners  will  unfairly  "lose"  royalty  revenues 
from  Europe  is  therefore  both  wrong  and  incomplete.  It  is  wrong  because  it  is  not  unfair  that 
a  work  enter  the  public  domain  50  years  after  the  death  of  its  author.  It  is  incomplete  because 
it  does  not  consider  that  the  royalties  in  question  will  be  paid  not  just  by  Europeans  but  also  by 
Americans,  and  not  just  to  United  States  copyright  owners  but  also  to  copyright  owners 
worldwide.  Additional  revenues  to  a  few  owners  of  old  copyrights  is  not  a  public  benefit 
justifying  adoption  of  the  legislation,  and  this  remains  true  even  though  some  part  of  those 
revenues  would  be  paid  by  Europeans.  The  extension  represents,  rather,  a  heavy  public  cost, 
both  in  additional  royalties  paid  by  the  United  States  public  and  in  the  loss  of  creative  new 
works  that  will  not  be  produced  because  the  exclusive  rights  of  copyright  remain  in  full  force 
on  works  that  cost/benefit  analysis  would  clearly  place  in  the  public  domain. 

CONCLUSION 

The  proposed  legislation  extending  all  copyright  terms  by  20  years  is  a  bad  idea  for  all 
but  a  few  copyright  owners.  None  of  the  current  copyright  terms  of  protection  should  be 
extended. 

The  undersigned  are  all  university  professors  who  regularly  teach  or  conduct  legal 
research  in  the  fields  of  coffy right  or  intellectual  property. 

Howard  B.  Abrams, 

University  of  Detroit  Mercy  School  of  Law 

Martin  J.  Adelman 

Wayne  State  University  Law  School 

Howard  C.  Anawalt 

Santa  Clara  University  School  of  Law 

Stephen  R.  Bamett 

University  of  California  at  Berkeley  School  of  Law 

Margreth  Barrett 

University  of  California  Hastings  College  of  the  Law 


Written  Testimony  of  Intellecmal  Property  Professors 

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309 


Mary  Sarah  Bilder 
Boston  College  Law  School 

Dan  L.  Burk 

Seton  Hall  School  of  Law 

Amy  B.  Cohen 

Western  New  England  College  School  of  Law 

Kenneth  D.  Crews 

Indiana  University  School  of  Law  -  Indianapolis 

Robert  C.  Denicola 

University  of  Nebraska-Lincoln  College  of  Law 

Jay  Dratler,  Jr. 

University  of  Hawaii  William  S.  Richardson  School  of  Law 

Rochelle  C.  Dreyfuss 

New  York  University  School  of  Law 

Rebecca  Eisenberg 

University  of  Michigan  Law  School 

John  G.  Fleming 

University  of  California  at  Berkeley  School  of  Law 

Laura  N.  Gasaway 

University  of  North  Carolina  School  of  Law 

Dean  M.  Hashimoto 
Boston  College  Law  School 

Paul  J.  Heald 

University  of  Georgia  School  of  Law 

Peter  A.  Jaszi 

American  University,  Washington  College  of  Law 

Mary  Brandt  Jensen 

University  of  Mississippi  School  of  Law 


Written  Testimony  of  Intellecnial  Property  Professors 

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310 


Beryl  R.  Jones 
Brooklyn  Law  School 

Dennis  S.  Karjala 

Arizona  State  University  College  of  Law 

John  A.  Kidwell 

University  of  Wisconsin  Law  School 

Edmund  W.  Kitch 

University  of  Virginia  School  of  Law 

Robert  A.  Kreiss 

University  of  Dayton  School  of  Law 

Roberta  Rosenthal  Kwall 

DePaul  University  College  of  Law 

William  M.  l^ndes 

University  of  Chicago  Law  School 

David  L.  Lange 

Duke  University  School  of  Law 

Marshall  Leaffer 

University  of  Toledo  College  of  Law 

Mark  Lemley 

University  of  Texas  School  of  Law 

Jessica  Litman 

Wayne  State  University  Law  School 

Peter  S.  Menell 

University  of  California  at  Berkeley  School  of  Law 

Robert  L.  Oakley 

Georgetown  University  Law  Center 

Harvey  Perhnan 

University  of  Nebraska  College  of  Law 


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311 


L.  Ray  Patterson 

University  of  Georgia  School  of  Law 

Leo  J.  Raskind 
Brooklyn  Law  School 

David  A.  Rice 
Rutgers-Newark  School  of  Law 

Pamela  Samuelson 

University  of  Pittsburgh  School  of  Law 

David  J.  Seipp 

Boston  University  School  of  Law 

David  E.  Shipley 

University  of  Kentucky  College  of  Law 

Robert  E.  Suggs 

University  of  Maryland  School  of  Law 

Eugene  Volokh 

University  of  California  at  Los  Angeles  School  of  Law 

Lloyd  L.  Weinreb 

Harvard  University  Law  School 

Sarah  K.  Wiant 

Washington  &  Lee  University  School  of  Law 

Alfred  C.  Yen 

Boston  College  Law  School 

Diane  L.  Zimmerman 

New  York  University  School  of  Law 

The  undersigned  is  in  agreement  with  the  conclusions  of  this  Written  Testimony  for 
substantially  the  reasons  given. 

Wendy  J.  Gordon 

Boston  University  School  of  Law 


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312 


Mr.  MOORHEAD.  Mr.  Patry. 


STATEMENT  OF  WILLIAM  F.  PATRY,  PROFESSOR,  BENJAMIN  N. 
CARDOZO  COLLEGE  OF  LAW 

Mr.  Patry.  Mr.  Chairman,  having  sat  on  the  other  side  of  the 
dais  in  the  102d  and  103d  Congresses,  I  know  how  important  it  is 
to  be  brief  at  this  time  of  the  day,  and  I  shall  be. 

Your  goals  in  introducing 

Mr.  CONYERS.  Were  you  in  the  Congress? 

Mr.  Patry.  I  worked  for  Mr.  Hughes  as  counsel  to  this  sub- 
committee. 

Mr.  Conyers.  Oh,  I  see.  OK. 

Mr.  Patry.  H.R.  989  has  two  laudable  goals:  first,  to  create  par- 
ity between  European  and  U.S.  authors,  and,  second,  to  assure  the 
author  and  his  or  her  heirs  of  the  fair  economic  benefits  derived 
from  the  author's  work.  Unfortunately,  I  believe,  as  currently  draft- 
ed, H.R.  989  does  not  achieve  either  of  your  worthy  objectives; 
quite  the  contrary. 

Professor  Karjala  referred  to  Mr.  Conyers'  comments  about  look- 
ing out  for  the  little  guy.  I  had  thought  Mr  Conyers  was  referring 
to  jazz  musicians  in  the  forties  and  fifties  and  sixties  who  had  to 
sign  rather  unfair  contracts.  On  pages  4  through  6  of  my  written 
statement  I  refer  to  that  situation.  That's  just  the  tip  of  the  iceberg 
because  we  all  know  what  it  was  like  then.  As  an  appendix  to  my 
written  statement  there  is  a  Billboard  editorial  about  this  issue. 

Unfortunately,  this  bill  as  currently  drafted  doesn't  look  out  for 
those  musicians  at  all.  Mr.  Hoke  asked  about  who  the  winners  and 
losers  were.  Ironically,  you  can't  say  that  many  authors  are  win- 
ners under  the  bill  as  introduced.  In  fact,  many  of  them  will  only 
marginally  benefit,  some  of  them  not  at  all,  while  the  disparities 
between  European  authors  and  U.S.  authors  will  increase,  not  de- 
crease. Why?  Because,  as  currently  drafted,  the  bill  grants  the  20 
years  of  copyright  to  the  purchasers  of  the  copyright  when  the  au- 
thor assigned  his  rights.  The  bill  doesn't  grant  these  20  years  to 
the  author  or  to  his  family.  And,  moreover,  the  bill  enforces  very 
old  contracts.  In  other  words.  Congress  is  statutorily  enforcing  pri- 
vate contracts  that  were  written  decades  ago  in  the  forties  and  fif- 
ties and  sixties,  very  unfair  contracts  that  we  all  know  exist.  This 
bill  enforces  those  contracts,  and  it  gives  the  purchasers  of  those 
copyrights  the  benefit  of  those  old  contracts  for  the  20  years.  That's 
why  I  say  the  bill  doesn't  achieve  the  objectives  that  you  set  out, 
and  they're  very  wonderful  objectives. 

No  one  has  given  you,  nor  do  I  think  anybody  can  give  you,  a 
reason  why  purchasers  of  copyrights  from  the  forties  and  fifties 
shouldn't  be  required  to  sit  down  at  the  table  and  bargain  with  au- 
thors and  their  families  for  what  the  value  of  the  copyright  is  right 
now  for  those  new  20  years.  After  all,  the  purchasers  of  the  copy- 
right are  going  to  sit  down  with  users  and  they're  going  to  charge 
them  what  the  value  is  in  todays  market.  The  only  person  who 
doesn't  get  the  benefit  of  today's  market  is  the  author,  and  that's 
unusual,  to  say  the  least. 

The  contracts  I'm  talking  about  could  have  been  entered  into  as 
long  ago  as  1920  because  there's  a  75-year  copyright.  Think  back. 
That's  the  very  year  commercial  radio  began.  That's  before  talking 


313 

movies,  before  television,  cable,  videocassettes,  audiotape  cassettes, 
compact  disks,  computers,  and  before  international  markets  were 
very  important. 

In  Europe,  since  there's  a  lot  of  talk  about  Europe,  European  law 
doesn't  generally  permit  a  contract  that  was  entered  into  that  long 
ago  to  cover  technologies  that  were  not  in  existence  at  the  time. 
That's  fair.  It  makes  sense.  If  you  sit  down,  negotiate  a  contract, 
it  shouldn't  cover  technologies  that  come  about  70  years  later  when 
you  can't  negotiate  what  the  fair  market  value  is,  but  this  bill 
doesn't  do  that.  This  bill  enforces  those  old  contracts,  and  I  think 
that  what  it  does,  therefore,  is  to  perpetuate  a  disparity  between 
U.S.  authors  and  European  authors. 

There's  lots  of  glowing  testimonials  such  as  the  one  about  inter- 
national royalties  Charlene  Barshefsky  gave  earlier,  and  that's  all 
wonderful,  and  I  think  it's  great  and  I  think  that  U.S.  authors 
should  get  them;  and  that's  important.  But  what's  lost  is  the  fact 
that  U.S.  authors  aren't  going  to  get  those  international  royalties 
in  many  cases. 

For  example,  there's  the  Billboard  article  about  jazz  and  blues 
musicians  from  the  forties  and  fifties  refers  to  this.  Recently,  a 
number  of  companies  have  agreed  to  reform  their  contracts  for 
international  royalties.  The  whole  article  is  in  my  written  state- 
ment, so  you  can  read  it.  The  most  enlightened  of  these  companies 
are  going  to  give  these  musicians  10  percent  of  foreign  royalties. 
Some  of  them  don't  give  them  anj^hing.  Some  of  them  give  1  per- 
cent. So  if  we're  talking  about  how  great  it  is  to  get  international 
royalties,  it's  a  little  unusual  when  90  to  99  percent  of  those  royal- 
ties are  being  siphoned  off  and  not  given  to  authors.  At  least  you 
have  to  wonder  whether  the  objectives  of  the  bill  are  being 
achieved. 

I  don't  think  that  these  disparities  are  limited  to  foreign  royal- 
ties. Indeed,  there  are  many  musicians  who  have  .been  forced  to  sell 
their  rights  for  a  small,  lump  sum  payment.  Quincy  Jones  referred 
to  some  of  them:  Willie  Dixon,  Muddy  Waters.  These  people  had  to 
sign  retroactive  work  made  for  hire  agreements.  Two  hundred  dol- 
lars was  all  they  got.  I  have  statements  from  record  companies 
where  people  like  Muddy  Waters  and  Hawlin'  Wolf  were  in  debt 
$50,000  for  recoupable  expenses  for  things  like  personal  betterment 
or  all  sorts  of  other  nonrecording  costs.  These  people  never  made 
it  out  of  the  hole. 

Some  companies  the  article  refers  to  are  reforming  those  con- 
tracts. Certainly  not  all  of  them  are,  and  it's  a  very  fair  question 
to  ask,  if  we're  going  to  be  extending  copyright  for  20  years,  do  we 
really  want  to  extend  those  kind  of  contracts?  I  say  no. 

Since  introduction,  there  have  been  a  number  of  groups  and  indi- 
viduals who  have  written  to  you  asking  that  the  bill  be  changed  so 
that  the  copyright  vests  automatically  in  the  authors.  These  in- 
clude Branford  Marsalis,  whom  many  of  you  know;  the  father  of 
Jimi  Hendrix,  the  National  Writers  Union,  and  the  Graphic  Artists 
Guild.  These  authors  make  the  point  much  better  than  I  can,  of 
course,  and  Quincy  Jones  made  the  same  one.  Their  families  de- 
pend upon  their  ability  to  receive  royalties  for  their  compositions. 
Many  of  these  artists,  such  as  Jimi  Hendrix,  signed  their  contracts 
in  their  twenties.  Frankie  Lymon  who  with  his  group  the  Teen- 


314 

agers  wrote,  "Why  Do  Fools  Fall  In  Love,"  he  was  12  years  old 
when  he  signed  that  contract,  and  his  record  company  producer  got 
himself  listed  as  a  coauthor  of  the  song,  even  though  he  wasn't,  so 
that  he  could  get  50  percent  of  the  author's  share  of  the  publishing 
royalties.  Mr.  Hendrix  in  his  letter  wrote  to  you  about  how  he  had 
spent  years  of  litigation  to  try  and  get  the  fair  economic  benefits 
of  his  son's  royalties. 

The  point  I'm  making  is  not  intended  to  disparage  the  music  in- 
dustry. It's  a  great  industry.  I'm  not  saying  that  any  of  these  prac- 
tices are  current  practices.  Hopefully,  they're  not;  I  assume  that 
they're  not,  but  the  past  is  relevant.  It's  not  beating  up  on  the 
music  industry.  The  part  is  relevant  because  this  bill  statutorily 
enforces  contracts  from  the  forties,  fifties,  and  sixties,  and  I  think 
it's  a  fair  question  to  ask  whether  you  really  want  to  do  that. 

Mr.  Bono  at  the  Pasadena  hearing  observed  that  99  percent  of 
the  songwriters  or  their  families  would  want  their  copyright  back, 
if  you  asked  them.  Of  course:  what  songwriter  is  going  to  say,  "Oh, 
no,  don't  give  me  that  20  years  back;  give  it  to  the  music  publisher. 
That  contract  I  wrote  in  the  forties  or  fifties,  sure,  it  only  gave  me 
$200  or  1  percent  of  the  royalties,  but  that's  OK;  I  don't  need  the 
money."  Mr.  Jones  referred  to  many  jazz  musicians  who  make  a 
living  off  of  three  or  four  songs.  Well,  they're  not  going  to  make 
much  of  a  living  if  they  have  to  live  off  of  contracts  from  the  forties 
or  fifties.  Why  shouldn't  they  get  the  copyright  back  and  to  be  able 
to  negotiate  what  the  fair  market  value  is  right  now? 

The  Copyright  Office  in  its  written  statement  I  think  takes  a 
very  similar  position.  They  said,  "On  balance,  it  seems  that  authors 
should  be  the  beneficiaries  of  the  longer  term."  That's  what  the 
Constitution  says,  by  the  way.  It  says  Congress  has  the  power  to 
grant  copyright  to  authors,  not  to  purchasers  of  copyright:  to  au- 
thors. 

Mr.  Chairman,  I  want  to  note  two  very  important  drafting  prob- 
lems. Even  if  you  decide  against  vesting  the  copyright  in  the  au- 
thor— and  that's  my  very  strong  recommendation — ^for  works  pub- 
lished between  1920  and  1933,  and  for  which  a  termination  of 
transfer  notice  hasn't  been  filed,  the  way  the  bill  works  these  peo- 
ple can't  get  their  copj^^ight  back  because  their  time  for  terminat- 
ing has  past.  In  other  words.  Congress  said  in  1976  we're  going  to 
give  you  an  extra  19  years  and  you  can  get  it  back  if  you  ask.  Well, 
guess  what?  These  authors  from  1920  to  1933,  who  Mr.  Lehman 
pointed  out  were  from  a  very  important  era,  they  can't  get  the  new 
20  years  back  because  the  time  limits  have  passed.  And  that  inabil- 
ity is  deliberate. 

At  the  Pasadena  hearing  there  was  a  question  from  Mr.  Becerra 
about  this,  and  the  answer  was,  "Oh,  well,  the  author  would  have 
terminated  if  the  work  is  commercially  valuable."  That's  kind  of  a 
silly  answer  I  think  because,  if  the  work  is  commercially  valuable 
for  the  publisher,  how  come  it  isn't  commercially  valuable  for  the 
songwriter?  Of  course  it  is. 

Ms.  Peters  also  referred  to  the  lack  of  termination  notices;  there 
haven't  been  very  many.  Of  course,  there  haven't  been  many.  It's 
incredibly  complicated.  In  my  written  statement,  I  set  out  about  six 
or  seven  pages  of  the  history  of  this  provision  of  the  law  and  the 
technical  details  of  it.  Unfortunately,  in  our  country  we  haven't 


315 

been  generous  to  authors.  We  have  set  up  almost  as  many  obsta- 
cles as  we  possibly  can  to  make  sure  that  authors  cannot  get  the 
benefits  of  all  their  rights.  We  can  do  better  than  that,  and  we 
should  do  better.  At  the  very  least,  we  should  let  people  who  want 
to  terminate  terminate. 

My  final  point  is  on  Mills  Music.  This  was  a  1985  decision  from 
the  Supreme  Court  that  misinterpreted  section  304  of  the  Copy- 
right Act  and  had  the  result  of  unfairly  depriving  authors  of  many 
of  their  benefits.  Former  Register  of  Copyrights  Barbara  Ringer, 
who  Mr.  Moorhead  of  course  knows  very  well,  authorized  me  to  tell 
you  that  she  supports  reversing  this  decision. 

In  testimony  before  the  Senate  on  this  issue  a  number  of  years 
ago,  she  put  it  very  succinctly:  "The  decision  takes  money  away 
from  authors  and  their  families  and  gives  it  to  entrepreneurs  who 
did  not  bargain  for  it,  did  not  expect  it,  and  did  nothing  to  deserve 
it."  I  notice  that  Register  of  Copyrights  Marybeth  Peters  also  asked 
you  to  examine  this.  This  issue  involves  a  lot  of  money,  and  in- 
volves a  provision  that  deprives  authors  right  now  of  what  they 
should  be  getting,  and  if  it  isn't  corrected,  that  unfairness  is  going 
to  be  perpetuated  for  yet  another  20  years. 

Mr.  Chairman,  I  trust  that  you'll  understand  that  my  comments 
are  offered  in  the  spirit  of  constructive  suggestions.  You  have  won- 
derful intentions  in  the  bill.  I  think  it's  an  excellent  idea  to  benefit 
authors.  My  only  hope  is  that  the  bill  can  be  changed  so  that  it  can 
achieve  your  very  worthy  objectives. 

Thank  you  very  much. 

[The  prepared  statement  of  Mr.  Patry  follows:] 


316 


PREPARED  STATEMENT  OF  WILLIAM  PATRY,  PROFESSOR,  BENJAMIN  N.  CARDOZO 

College  of  Law 


TABLE  OF  CONTENTS 
Overview 


PAGE 

2 


A  Brief  Review  of  Term  of  Protection  8 

in  the  United  States 
The  1790  Act 
The  1831  Act 
The  1909  Act 
The  1976  Act 


9 
9 

10 
11 


How  Duration  Works  in  the  1976  Act  20 

Terms  of  Protection  20 

Terminations  of  Transfers  21 

Section  304(c)  22 

Section  203  ^^ 

29 
H.R.  989  ^^ 

Proposals  for  Amendment  to  H.R.  989  32 

Mills  Music  v.  Snyder  33 

34 

Reciprocity 


317 


Overview 


Mr.  Chairman,  your  intention  and  that  of  your  cosponsors  is 
noble:  to  create  parity  between  European  authors  and  U.S.  authors. 
I  do  not  believe  your  intention  was  to  create  parity  between 
European  authors  and  those  who  merely  purchased  the  copyright  from 
U.S.  authors,  leaving  U.S.  authors  empty  handed.  Unfortunately,  as 
currently  drafted,  H.R.  989  does  not  create  parity  between  U.S. 
authors  and  European  authors.  Instead,  because  of  drafting  that 
statutorily  enforces  decades  old  contracts,  the  bill  awards  the  new 
20  years  of  copyright  to  purchasers  of  copyright  rather  than  to  the 
author  or  his  family.  These  purchasers  of  copyright  neither 
bargained  for  nor  paid  for  the  new  20  years. 

As  I  detail  below,  ^  the  history  of  these  old  contracts  can  be 
traced  back  at  least  to  1919,  when  lawyers  for  music  publishers 
began  inserting  boilerplate  language  in  contracts  with  songwriters 
claiming  that  any  future  extensions  of  term  granted  by  Congress 
would  automatically  vest  in  the  publisher.^  H.R.  989  has  the 
effect  of  statutorily  enforcing  this  1919  boilerplate  language  with 


See  page  16. 

^  This  practice  was  candidly  noted  during  1964  Copyright 
Office  meetings  on  revising  the  1909  Act  by  Philip  B.  Wattenberg: 

Since  1919  my  firm  has  represented  music  publishers, 
and  during  those  years  we've  drawn  numerous  contracts 
under  which  the  renewal  contract  was  assigned  to  the 
publisher.  Invariably,  these  contracts  contained  the 
following  language:  "If  the  copyright  law  of  the 
United  states  now  in  force  shall  be  changed  or  amended 
so  as  to  provide  for  an  extended  or  longer  term  of 
copyright,  then  the  writer  hereby  sells,  assigns, 
transfers,  and  sets  over  unto  the  publisher,  its 
successors  and  assigns  or  designees,  all  his  right, 
title,  and  interest  in  an  to  said  musical  compositions 
covered  by  this  agreement,  for  such  extended  or  longer 
term  of  copyright." 

Copyright  Law  Revision  Part  4 :  Further  Discussions  and  Comments  on 
Preliminary  Draft  for  Revised  U.S.  Copyright  Law.  88th  Cong. ,  2d 
Sess.  39  (House  Coram.  Print  1964) . 

That  music  publishers  were  able  to  force  writers  to  sign  such 
agreements  does  not  mean  that  music  publishers  paid  for  the  right 
and  thus  should  have  the  benefit  of  a  term  of  copyright  not  even  in 
existence  until  decades  later. 


318 


the  result  that,  as  in  the  board  game  "Monopoly,"  the  copyright 
goes  right  to  the  publisher  without  even  stopping  at  the  author. 

Your  laudable  goal  of  parity  for  U.S.  authors  has  thus  been 
distorted  into  an  involuntary  subsidy  for  purchasers  of  copyright. 
This  subsidy  is  the  difference  between  the  market  value  of  the 
copyright  in  today's  market  and  the  market  value  of  the  copyright 
when  the  original  contract  was  signed.  The  subsidy  will  be  paid  by 
authors  and  their  families,  the  very  people  the  bill  is  intended  to 
help.  No  one  has  or  can  give  you  a  reason  why  purchasers  of 
copyright  shouldn't  be  required  to  sit  at  the  table  and  bargain 
with  authors  or  their  families  for  the  value  of  the  new  20  years 
copyright  in  today's  market;  after  all,  the  copyright  is  for 
exploitation  in  today's  market. 

Mr.  Chairman,  the  contracts  I'm  talking  about  could  have  been 
written  as  long  ago  as  1920,  the  very  year  commercial  radio  began, 
at  a  time  before  most  talking  movies,  before  television,  before 
cable,  before  videocassettes,  before  audio  tape  cassettes,  before 
compact  discs,  before  computers,  and  before  foreign  markets  were 
important.  While  the  terms  of  these  old  contracts  vary  even  within 
industries,  some  courts  have  upheld  broadly  drafted  contracts  from 
the  1920s  and  1930s  that  give  the  purchaser  of  the  copyright  the 
right  to  release  the  author's  work  in  new  technological  media  not 
in  existence  at  the  time  of  the  contract,  sometimes  with  no 
payment,  and  always  at  a  rate  that  does  not  reflect  the  current 
market  conditions. 

Most  countries  throughout  the  world,  including  those  in 
Europe,  do  not  permit  assignments  of  rights  in  technologies  not  in 
existence  at  the  time  the  contract  was  signed.  By  enforcing  these 
old  contracts,  your  goal  of  achieving  parity  between  U.S.  authors 
and  European  authors  will  not  be  achieved.  Instead,  a  disparity  is 
being  perpetuated. 

Moreover,  in  the  past  U.S.  musicians  have  received  very  few 
foreign  royalties,  as  revealed  in  the  attached  June  10th  article  in 
Billboard  magazine.  If  that's  the  case  now,  it  will  be  the  case  for 
the  new  20  years.  But  this  problem  is  hardly  limited  to  foreign 
royalties.  There  are  many  well-known  musicians  who  were  forced  to 
sell  their  rights  for  a  one-time  small,  lump-sum.  These  musicians 
won't  receive  one  penny  if  H.R.  989  passes. 

Since  the  introduction  of  H.R.  989,  a  number  of  groups  and 
individuals  have  had  the  chance  to  fully  study  the  bill.  They  are 
writing  to  you  asking  that  the  bill  be  changed  to  vest  the 
copyright  automatically  in  authors.  These  authors  make  the  point 
better  than  I  can:  their  families  depend  upon  their  ability  to 
receive  royalties  from  their  compositions.  As  Mr.  Bono  stated  at 
the  Pasadena  hearing,  many  musicians  sign  contracts  when  they  are 
very  young,  often  without  legal  (or  any)  representation,  without 
any  knowledge  of  the  copyright  law,  and  with  little  experience  in 


319 


the  music  business. 

At  the  Pasadena  hearing  Mr.  Bono  made  the  same  point, 
observing  that  songwriters  don't  have  the  rights  they  should 
because  many  of  them  signed  contracts  when  they  were  very  green 
about  the  music  business,  whereas  music  publishers  have,  as  he  put 
it,  "a  battalion  of  lawyers."  Although  Mr.  Bono's  comments  need  no 
support,  articles  in  Billboard  magazine  (reproduced  in  the  appendix 
to  this  statement)  ,  as  well  as  number  of  biographies  or 
autobiographies  of  musicians,  statement  reinforce  his  comment.  For 
example,  Willie  Dixon,  the  most  famous  and  prolific  of  blues 
composers,  put  it  this  way  in  his  autobiography: 

I  call  it  swindling  but  most  people  call  it  smart 
business  when  you  take  advantage  of  someone  who  don't 
know  no  better.  I  didn't  know  anything  about  copyright 
laws  or  anything  like  that. 

I  thought  I  was  dealing  with  honest  people  and  when 
you  trust  someone  who's  dishonest,  you  get  bitten.  The 
law  can  take  care  of  it  if  you  can  get  enough  money  and 
get  a  lawyer  to  get  justice.  They  [Chess  Records]  felt 
like  if  they  could  keep  you  poor  enough,  you  wouldn't 
have  nothing  to  fight  with  and  that's  the  truth.  I  didn't 
have  $2  a  lot  of  times  to  have  a  copyright  paper  on  a 
song  sent  into  Congress.-^ 

Don  Snowden,  who  collaborated  with  Willie  Dixon  on  the 
autobiography  explained  how  the  copyright  in  the  musical 
composition  dovetailed  with  record  contracts: 

[T]he  chief  bone  of  contention  among  Chess  artists 
concerned  the  symbiotic  relationship  with  Arc  Music, 
the  label's  in-house  publishing  company  formed  in  1953. 
The  Chess  brothers  were  partners  in  Arc  Music  with 
Gene  and  Harry  Goodman,  who  ran  the  publishing  company 
from  New  York.  Ironically,  given  the  number  of  claims 
that  have  been  filed  against  Arc  Music  by  black  blues 
artists,  the  Goodmans  were  the  brothers  of  Benny  Goodman, 
who  had  effectively  broken  the  color  barrier  in  jazz  in 
1936  by  including  pianist  Teddy  Wilson  and  later  vibes 
player  Lionel  Hampton  in  his  group. 

It  was  common  practice  for  the  early  independent  record 
companies  to  start  up  their  own  publishing  wings  —  and 
sometimes  placing  the  rights  to  their  songs  with  the  in 


^  Willie  Dixon,  "I  Am  the  Blues"  99-100  (1989)  .  Like  Muddy 
Waters,  Dixon  signed  a  retroactive  work  for  hire  agreement,  which 
he  subsequently  got  overturned  with  legal  help.  In  his 
autobiography '"he  also  talks  about  Chess's  practice  of  putting  its 
publisher's  or  other  people's  names  on  composer's  songs.  See  id.  at 
20Q. 


320 


-house  publishing  company  was  a  condition  of  an  artist 
getting  recorded.  Label  owners  could,  with  a  stroke  of 
the  pen,  split  songwriting  credits  [and  therefore 
royalties]  by  adding  names  or  pseudonyms  to  the  copyright. 
The  most  famous  example  at  Chess  was  "Maybelline, "  credited 
to  Chuck  Berry,  rock  n'roll  deejay  Alan  Freed  and  Russ 
Fratto,  the  man  who  was  printing  up  the  record  labels  for 
Chess  at  the  time.^ 

Chess /Arc  Music  was  hardly  alone  in  this  practice;  Atlantic 
Records  was  also  notorious,  and  even  famous  composers  such  as  Duke 
Ellington  were  forced  to  share  authorship  credits  and  royalties 
with  their  music  publishers.  In  his  book  "Hit  Men,"  Frederic  Dannen 
stated  regarding  the  independent  labels: 

The  pioneers  deserve  praise  for  their  foresight 
but  little  for  their  integrity.  Many  of  them  were 
crooks.  Their  victims  were  usually  poor  blacks,  the 
inventors  of  rock  and  roll,  though  whites  did  not 
fare  much  better.  It  was  a  common  trick  to  pay  off  a 
black  artist  with  a  Cadillac  worth  a  fraction  of  what 
he  was  owed.  Special  mention  is  due  Herman  Lubinsky, 
owner  of  Savoy  Records  in  Newark,  who  recorded  a  star 
lineup  of  jazz,  gospel,  and  rhythm  and  blues  artists 
and  paid  scarcely  a  dime  in  royalties. 

Dannen  also  quotes  Hy  Weiss,  founder  of  the  Old  Town  record 
label,  as  stating  "What  were  these  bums  off  the  street?"  and  as 
defending  the  practice  of  giving  Cadillacs  instead  of  royalties 
with  reasoning  that  evokes  the  memory  of  Earl  Butz,  President 
Nixon's  one-time  Secretary  of  Agriculture:  "So  what,  that's  what 
they  wanted.  You  had  to  have  credit  to  buy  the  Cadillac."^ 
Apparently  even  those  songwriters  without  an  appetite  for  Cadillacs 
had  no  choice  but  to  give  up  their  copyright: 

[Levy]  saw  nothing  wrong,  for  example,  in  putting  his 
name  on  other  people's  songs  so  that  he  could  get 
writer's  as  well  as  publisher's  royalties.  When  Ritchie 
Cordell  wrote  "It's  Only  Love"  for  Tommy  James  and  the 
Shondells,  ...  Morris  [Levy],  [Cordell]  said,  "gave  me 
back  the  demo  bent  in  half  and  told  me  if  his  name  wasn't 
on  it,  the  song  didn't  come  out."^ 


*  Id.  at  185.  Freed  was  indicted  in  1960  in  a  payola  scandal 
and  admitted  taking  $2,500.  See  Frederic  Dannen,  "Hit  Men"  43 
(1991) . 

^  Id.  at  49. 

^  Id.  at  48-49. 


321 


Bunk  Johnson,  a  pianist  and  bandleader,  is  quoted  in  Dizzy 
Gillespie's  autobiography  "To  Be  or  Not  to  Bop"  (page  298)  as 
follows: 

A  lotta  guys  who  weren't  keeping  up  with  what  was 
going  on  [with  copyright  law]  would  get  a  [recording] 
date,  so  the  [record  company's]  A&R  man,  or  some 
fellow,  ofay  or  whatever,  would  say  "O.K.,  gimme  a 
riff.  You  know,  just  make  up  a  head.  We  don't  need 
no  music;  we're  gonna  record." 

So  the  cats  would  record,  make  up  something.  And 
they're  actually  creating  the  music  right  on  the 
record  date.  Now,  when  it  comes  out,  they  wouldn't 
completely  beat  them,  but  usually  the  guy,  the  A&R 
man,  had  his  own  publishing  firm  or  his  buddy's  got 
one  and  right  away  he  would  stick  in  all  of  this 
material  —  because  you  have  recorded  it  and  you  didn't 
have  it  protected  —  and  in  order  for  him,  he  says,  to 
sava  the  material,  he's  put  it  in  a  publishing  company. 
The  publishing  company  would  give  you  one  of  them  jive 
contracts,  where  you'd  never  get  no  royalties.  So  this 
was  a  rip-off. 

The  music  industry's  historically  poor  treatment  of  jazz, 
blues,  and  popular  musicians  led  to  a  recent  editorial  in  the  June 
10,  1995  issue  of  Billboard  magazine,  part  of  which  states:' 

One  of  the  music  industry's  best-kept  secrets 
for  decades  centered  on  an  ugly  period  of 
economic  injustice  often  perpetrated  by  owners 
of  masters  and  song  copyrights  against  artists 
and  songwriters  who  mainly  made  their  way  (if 
not  much  of  a  living)  in  the  R&B  and  blues  fields. 

An  article  accompanying  the  editorial  notes  that 

Old  recording  contracts  often  saddled  unrepresented 
artists,  most  of  them  African-Americans,  with 
royalty  rates  as  low  as  3%  of  wholesale  or  1% 
of  retail  price.  Still  other  artists  accepted 
no-royalty  "buy-outs"  of  between  $50  and  $200 
per  record. 

Mr.  Chairman,  I  do  not  raise  these  points  to  disparage  the 
music  industry  or  to  suggest  that  these  represent  today's 
practices.  But  this  unfortunate  past  is  relevant  to  H.R.  989, 
because  as  currently  drafted,  the  bill  will  enforce  these  very 
contracts  for  another  20  years. 

Nor  Mr.  Chairman,  am  I  saying  that  all  publishers  are  evil  or 


''   The  entire  editorial  is  attached  to  this  statement. 


322 


that  all  contracts  are  unfair.  That's  not  the  case,  and  some  record 
companies /publishers  are  revising  old  contracts  to  give  artists  a 
better  deal.^  Authors  need  publishers,  and  publishers  need 
authors.  I  have  an  excellent,  long  term  relationship  with  my 
publisher,  and  I  am  an  avid  purchaser  of  both  books  and  sheet 
music.  I  appreciate  the  efforts  publishers  undertake  to  get  a  work 
to  market  and  make  it  successful,  and  I  agree  they  should  get  the 
full  benefit  of  their  bargain.  But  I  don't  agree  that  contracts 
entered  into  decades  ago  should  govern  a  situation  neither  side 
bargained  for  ~  a  grant  in  1995  of  a  new  term  of  20  years 
copyright.  It  is  only  reasonable  and  fair  to  grant  the  new 
copyright  to  authors,  thereby  permitting  the  author  (or  his  heirs) 
to  sit  down  in  1995  and  say  to  the  purchaser  of  copyright:  "We  now 
have  a  new  right,  how  do  we  fairly  negotiate  a  deal  in  1995?" 

No  one  can  refute  Mr.  Bono's  observation  at  the  Pasadena 
hearing  that  99%  of  songwriters  or  their  faunilies  would  want  the 
copyright  back  if  given  the  chance.  It  is  my  understanding  that 
music  publishers  may  not  support  a  bill  that  does  not  give  them  the 
copyright.  Indeed,  music  publishers  may  also  seek  to  delay  the 
termination  of  transfer  provision  in  Section  203  of  the  1976  Act 
for  copyrights  assigned  on  or  after  1978.  This  section  says  that 
the  author  can  get  his  or  her  copyright  back  35  years  after  it  was 
assigned.  Music  publishers  are  supposedly  seeking  to  make  the 
songwriter  wait  even  longer.  But  there  is  no  connection  between 
extending  the  term  of  copyright  and  Section  203. 

This  proposal  will  place  songwriters  in  a  worse  position  than 
they  are  under  today's  law.  For  this  reason,  the  Nashville 
Songwriters  Association  has  said  that  they  would  rather  have  no 
bill  than  a  bill  that  includes  the  music  publishers'  proposal. 

But  the  unintended  negative  effects  of  the  bill  as  drafted 
aren't  limited  to  assignments  made  from  1978  on.  For  works  that 
were  first  published  between  1920  and  1933  and  for  which  a 
termination  of  transfer  notice  under  Section  304  of  the  Act  has  not 
been  filed,  the  author  cannot  get  his  copyright  back  for  the  new  20 
year  term,  even  if  he  wants  to.  because  the  5  year  window  for 
termination  is  past.  As  ASCAP's  lawyer  testified  at  the  Pasadena 
hearing,  in  response  to  a  question  from  Mr.  Becerra,  barring  these 
authors  from  getting  their  copyright  back  was  deliberate.  The 
reason  given  was  that  if  the  work  was  valuable,  the  author  would 
have  already  terminated.  This  response  blames  the  victim.  If  a  work 
is  commercially  valuable  for  the  publisher,  it  is  valuable  for  the 
composer.  And,  of  course,  how  could  a  composer  have  known  in  1978 
that  he  was  supposed  to  file  a  notice  with  the  Copyright  Office 
because  17  years  later  Congress  was  going  to  grant  an  additional  20 
years  copyright? 


^  See  attached  March  4,  1995  Billboard  article. 


323 


Fortunately,  the  problems  with  H.R.  989  can  be  easily  fixet 
and  your  good  intentions  full  realized.  As  discussed  more  below, 
all  you  need  do  is  either  vest  the  proposed  extra  20  years 
automatically  in  the  author,  either  following  the  approach  already 
taken  in  the  bill,  or,  alternatively  —  and  this  is  my  preference  - 
-  by  going  to  a  life  plus  70  term  for  all  works,  regardless  of  when 
published. 

A  Brief  Review  of  Term  of  Protection  in  the  United  States 

In  order  fully  to  understand  the  provisions  of  H.R.  989,  a 
brief  review  of  the  history  of  the  term  of  protection  in  the  United 
States  may  be  helpful  since  H.R.  989  reaches  back  as  far  as  works 
first  published  in  1920. 

Article  I,  section  8,  clause  8  of  the  Constitution  empowers 
Congress  to  grant  authors  the  exclusive  right  to  their  writings 
••for  Limited  Times,"  but  without  any  guidance  as  to  what  the  phrase 
means,  other  than,  obviously,  not  permitting  perpetual  copyrights. 
Congress  has  not  been  particularly  generous  in  granting  copyright 
protection,  so  the  limits  of  the  Constitutional  power  have  never 
been  tested. 

The  first  U.S.  Copyright  Act,  the  Act  of  1790,'  began  the 
pattern,  only  broken  186  years  later  in  the  1976  Act,^°  of 
measuring  copyright  from  an  event  other  than  the  author's  life.^^ 
From  1790  to  1908,  that  event  was  filing  a  prepublication  title 
page  of  the  work  either  with  the  clerk  of  the  district  court  where 
the  author  resided  (from  1790  to  1869)  or  with  the  Library  of 
Congress  (from  1870  to  1908).  From  1909  to  1977,  copyright  was 
measured  from  the  date  of  first  publication  of  the  work.^^ 


^  Act  of  May  31,  1790,  1st  Cong.,  2d  Sess.,  1  Stat.  124. 

^°  The  1976  Act  was  effective  January  1,  1978. 

^^  By  contrast,  the  first  French  Act,  that  of  1793,  was  based 
on  the  life  of  the  author.  In  1814,  the  British  went  to  a  term  of 
28  years  plus  the  remainder  of  the  author's  life  if  he  or  she  was 
alive  at  the  end  of  the  28  year  period.  53  Geo.  Ill,  ch.  156.  In 
1842,  the  British  switched  to  a  term  of  42  years  or  life  of  the 
author  plus  7  years,  whichever  was  longer.  5  &  6  Vict.,  ch.  45.  In 
1911,  England,  as  a  result  of  its  adherence  to  the  Berne 
Convention,  went  to  life  plus  50.  (The  1908  Berlin  Berne  Convention 
had  stated  a  desire  for  a  life  plus  50  term,  but  that  term  did  not 
become  a  requirement  until  the  1948  Brussels  Convention) . 

^^  An  exception  was  provided  for  so-called  "Section  12"  works: 
unpublished  works  that  were  typically  performed  and  not  sold  in 
copies,  such  as  motion  pictures  and  speeches.  Although  the  statute' 


324 


Beginning  in  1978,  the  basic  term  was  switched  to  life  of  the 
author  plus  50  years. ^^ 

The  1790  Act 

The  term  set  forth  in  the  1790  Act  (like  much  of  that  Act)  was 
derived  from  the  1710  English  Statute  of  Anne:^*  an  original  term 
of  14  years  from  the  date  the  title  of  a  prepublication  copy  of  the 
work  was  filed  with  the  clerk  of  the  United  States  district 
court,  ^^  followed  by  a  second  renewal  term  also  of  14  years  for 
the  benefit  of  the  author  or  the  author's  executor,  administrators, 
and  assigns  if  the  author  was  alive  at  the  expiration  of  the  first 
term  and  the  work  was  again  filed  with  the  district  court.  If  the 
author  died  during  the  first  term,  the  work  fell  into  the  public 
domain  at  the  expiration  of  that  term.  And  if  the  author  lived 
until  the  renewal  term,  but  failed  to  timely  renew,  the  work  also 
fell  into  the  public  domain.  If  the  author  died  during  the  renewal 
term  (and  a  timely  renewal  had  been  made)  rights  were  owned 
according  to  the  author's  bequest,  or  if  assigned,  according  to  the 
assignment. 

The  1831  Act 

In  1831,  at  the  request  of  Noah  Webster,  Congress  doubled  the 
original  term  of  copyright  to  28  years. ^^  The  renewal  term  stayed 


did  not  provide  a  term  for  these  works,  the  courts  held  that  the 
term  was  measured  from  the  date  of  registration  with  the  Copyright 
Office. 

^^  17  U.S.C.  section  302  (1978).  For  works  created  by 
corporations  the  term  could  not  be  measured  by  the  life  of  the 
author,  and  is  instead  set  at  either  75  years  from  the  date  of 
first  publication  or  100  years  from  creation,  whichever  occurs 
first. 

^*  8  Anne  c.  19  (1710). 

^^  Interestingly,  the  Statute  of  Anne  and  all  of  the  colonial 
statutes,  as  well  as  the  Continental  Congress's  May  2,  1783 
resolution  urging  the  states  to  adopt  interim  copyright  laws 
measured  term  from  the  date  of  first  publication  of  the  work.  No 
evidence  has  turned  up  explaining  the  1790  Act's  departure  from 
this  prior  practice. 

^^  Act  of  February  3,  1831,  21st  Cong.,  2d  Sess.,  4  Stat.  436; 
W.  Ellsworth,  COPY-RIGHT  MANUAL  21-22  (1882).  Ellsworth  was 
Webster's  son  in-law,  and  a  member  of  the  House  of  Representatives 
at  the  time  of  this  Act  (including  the  Judiciary  Committee,  upon 
whose  behalf  he  reported  out  the  bill)  ,  52  ANNALS  OF  CONGRESS, 
Appendix  cxix,  21st  Cong.  (Dec.  17,  1830) (Gale  &  Seaton's  Register 


325 


10 


at  14  years.  This  Act  also  changed  the  prior  law  so  that  the  work 
did  not  go  into  the  public  domain  if  the  author  died  during  the 
original  term,  and  limited  the  renewal  right  to  the  author's 
surviving  spouse  and  children,  eliminating  executors, 
administrators,  and  assignees.  The  intent  of  these  changes  appears 
to  have  been  to  prohibit  the  author  from  making  a  binding  inter 
vivos  transfer  of  both  the  original  and  renewal  term,  and  to 
prohibit  the  author  from  conveying  the  renewal  term  to  anyone  other 
than  his  family. 

The  1909  Act 

In  the  1909  general  revision.  Congress  doubled  the  renewal 
term,  so  that  both  the  renewal  term  and  the  original  term  were  28 
years,  for  a  possible  total  of  56  years.  ("Possible"  because  if  a 
timely,  proper  renewal  was  not  filed  in  the  final  year  of  the 
original  term,  the  work  went  into  the  public  domain  after  only  28 
years) .  At  the  same  time,  the  term  was  switched  from  the  date  of 
filing  a  prepublication  title  with  the  Library  of  Congress  to  the 
date  of  first  publication.  Congress  had  come  very  close  to  adopting 
a  term  of  life  of  the  author  plus  a  fixed  number  of  years,  but  at 
the  last  minute  switched  to  the  28+28  structure,  perhaps  swayed  by 
Mark  Twain's  testimony  that  he  had  only  made  money  off  of  Innocents 
Abroad  because  he  had  retained  the  copyright  in  the  renewal 
termT^  The  House  Patent  Committee^®  report  accompanying  the 
1909  Act  explains  that  it  believed  it  was 

"distinctly  to  the  advantage  of  the  author  to 
preserve  the  renewal  period.  It  not  infrequently 
happens  that  the  author  sells  his  copyright  outright 
to  a  publisher  for  a  comparatively  small  sum.  If  the 
work  proves  to  be  a  great  success  and  lives  beyond 
the  term  of  twenty-eight  years,  your  committee  felt 
that  it  should  be  the  exclusive  right  of  the  author 
to  take  the  renewal  term...  . ^^ 

This  passage  also  indicates  Congress's  intent  that  the  author 
should  not  be  able  to  assign  the  renewal  term  until  that  term 


of  Debates  in  Congress) 


^^  If  true,  this  is  ironic  since  Twain  had  testified  in  favor 
of  the  life  plus  a  fixed  term  bill,  adding  that  he  wished  copyright 
could  be  perpetual.  See  Arguments  Before  the  Committees  on  Patents 
on  S.  6330  and  H.R.  19853.  59th  Cong.,  1st  Sess.  116-121  (1906). 

^®  At  this  time  the  Patent  Committee,  rather  than  Judiciary, 
had  primary  jurisdiction  over  intellectual  property. 

^^  H.R.  REP.  NO.  2222,  60th  Cong.,  2d  Sess.  14  91909). 


326 


11 

vested.  This  has  been  the  consistent  view  of  the  Copyright 
Office. 2°  Nevertheless,  in  Fred  Fisher  Music  Publishing  Co.  v.  M. 
Witmark  &  Sons.^^  the  Supreme  Court,  openly  rewriting  the 
Copyright  Act,'^'^  held  that  an  assignment  of  the  renewal  term,  made 
by  the  author  dxiring  the  original  term  was  binding.  In  Miller  Music 
Corp.  V.  Charles  N.  Daniels.  Inc..^^  the  Court  tempered  the  Fred 
Fisher  holding  slightly,  by  holding  that  where  the  author  died 
before  the  renewal  term  the  assignment  of  the  renewal  term,  as  a 
contingent  interest,  failed  and  the  author's  statutory  successors 
took  the  renewal  term  free  and  clear  of  all  assignments  made  during 
the  original  term. 

The  1976  Act 

Efforts  at  revising  the  1909  Act  began  in  1955  with  a 
comprehensive  way  with  a  series  of  36  issue  studies  by  the 
Copyright  Office.  In  1961,  Register  of  Copyrights  Abraham 
Kaminstein  issued  a  report  to  Congress  containing  the  Office's 
preliminary  conclusions  and  recommendations  about  what  a  revised 
law  should  contain.^*  The  Register  recommended  that  for  works 
created  after  the  new  law  went  into  effect,  the  copyright  should 
last  for  an  initial  term  of  28  years  from  the  first  public 
dissemination  of  the  work,^^  and  that  at  any  time  during  the  last 
5  years  of  this  initial  term,  any  person  claiming  an  interest  in 
the  copyright  could  file  a  renewal  application,  which  would  then 


^°  See  COPYRIGHT  LAW  REVISION:  REPORT  OF  THE  REGISTER  OF 
COPYRIGHTS  ON  THE  GENERAL  REVISION  OF  THE  U.S.  COPYRIGHT  LAW,  87th 
Cong.,  1st  Sess.  53  (House  Comm.  Print  1961). 


21 


318  U.S.  643  (1943) 


^^  See  318  U.S.  at  647,  "if  we  look  only  to  what  the  Act  says, 
there  can  be  no  doubt  as  to  the  answer,"  the  answer  being  the 
opposite  of  what  the  Court  held. 

23  362  U.S.  373  (1960).  In  Stewart  v.  Abend.  495  U.S.  207 
(1990) ,  the  Court  applied  Miller  Music  to  cases  involving 
derivative  works  prepared  during  the  original  term,  overruling 
Rohauer  v.  Killiam  Shows,  Inc.,  551  F.2d  484  (2d  Cir.),  cert. 
denied.  431  U.S.  949  (1977). 

2*  This  report  was  published  by  the  House  Judiciary  Committee, 
Copyright  Law  Revision;  Report  of  the  Register  of  Copyrights  on  the 
General  Revision  of  the  U.S.  Copyright  Law.  87th  Cong.,  1st  Sess. 
(House  Comm.  Print  1961) . 

2^  This  differed  from  the  1909  Act,  which  measured  term  from 
the  date  of  first  publication. 


327 


12 


extend  the  copyright  for  48  years,  for  a  total  of  76  years. ^^ 
Despite  this  somewhat  more  liberal  approach,^'  as  under  the  1909 
Act,  failure  to  renew  would  throw  the  work  into  the  public  domain. 

For  works  that  had  already  been  published  at  the  tine  the  new 
law  went  into  effect,  the  copyrights  would  be  extended  for  the  same 
period  of  time.^°  The  Register  also  expressed  the  view  that  due 
to  the  above-mentioned  Supreme  Court  decisions,  Congress's  intent 
in  giving  the  renewal  term  to  authors  or  their  heirs  had  been 
thwarted.^'  To  cure  this  problem,  the  Register  proposed  that  there 
be  a  20-year  limit  on  any  assignment  of  copyright,  or  at  least 
those  assignments  that  did  not  provide  for  continuing  royalties,  so 
that  authors  or  their  heirs  would  be  "in  a  position  to  bargain  for 
remuneration  on  the  basis  of  the  [then  present]  economic  value  of 
their  works. "^°  This  same  concern  animates  my  earlier  remarks  that 
the  current  version  of  H.R.  989  unintentionally  deprives  authors 
and  their  feunilies  from  bargaining  for  the  current  value  of  the 
work. 

In  meetings  with  industry  groups  and  others  interested  in  the 
revision,  the  Copyright  Office  heard  considerable  criticism  of  its 
proposals, ^^  with  the  Register  later  describing  the  termination 


^^  Id.  at  56.  The  76  year  period  came  about  as  a  result  of  a 
study  of  673  authors  of  English-language  books  who  died  between 
1930  and  1955,  a  survey  of  61  composers  of  "serious"  music,  and  a 
survey  of  191  authors  of  popular  music  who  died  between  1930  and 
1950.  This  data  showed  that  the  average  age  at  median  between  the 
first  and  last  work  was  48  years  and  the  average  age  at  death  was 
68  years,  for  a  span  of  2  0  years.  Based  on  these  figures,  the 
Register  assumed  that  a  term  of  7  0  years  from  first  publication 
would  approximate  the  life  plus  50  term.  But  because  life 
expectancies  were  rising,  a  slightly  longer  term  of  76  years  was 
proposed . 

^'  Under  the  1909  Act,  there  was  only  one  proper  renewal 
claimant  and  the  renewal  application  had  to  be  filed  within  the 
final  year  of  the  first  28  year  period  of  protection. 

^°  I  do  not  discuss  the  separate  issue  of  the  treatment  of 
unpublished  works.  I  understand  that  the  Copyright  Office  is 
addressing  this  issue  in  its  statement. 


30 


Register's  1961  Report  at  53-54, 
Id.  at  93. 


See  Copyright  Law  Revision  Part  2:  Discussions  and  Comments 
on  the  Report  of  the  Register  of  Copyrights  on  the  General  Revision 
of  the  U.S.  Copyright  Law.  88th  Cong.,  1st  Sess.  (House  Comm.  Print 
1963)  . 


328 


13 


of  transfer  provisions  as  "the  most  explosive  and  difficult  issue" 
in  the  revision  drafting. ^^  Some  criticized  the  Office's  failure 
to  propose  a  term  of  life  of  the  author  plus  50  years, ■'^  while 
publishers  and  motion  picture  companies  criticized  the  author's 
proposed  ability  to  terminate  an  assignment  after  20  years. ^* 
Authors'  groups  and  some  scholars,  such  as  Melville  Nimmer, 
supported  the  termination  right, •'^  with  some  arguing  it  should 
apply  to  all  assignments  (i.e.,  regardless  of  whether  there  was  a 
continuing  obligation  to  pay  royalties) . 

In  1963,  the  Copyright  Office  circulated  a  preliminary  draft 
bill.^^  As  a  result  of  the  Office's  abandonment  of  its  earlier 
proposal  that  copyright  vest  upon  first  public  dissemination  in 
favor  of  copyright  vesting  automatically  upon  creation  and 
fixation,  alternative  approaches  to  term  were  offered  in  Sections 
20  and  22.  Section  20  covered  works  created  after  the  effective 
date  of  the  new  law.  Section  22  covered  works  created  before  the 
effective  date  of  the  new  law.  Alternative  A  in  Section  20  provided 
for  a  term  of  75  years  from  publication  or  100  years  from  creation, 
whichever  occurred  first.  Alternative  B  provided  for  a  term  of  life 
of  the  author  plus  50  years.  Section  22(b)  extended  the  renewal 
term  for  47  years  for  a  total  of  75  years,  a  period  that  was  viewed 
as  roughly  equivalent  on  an  actuarial  basis  to  life  plus  50. 
This  extra  19  years  (28+19=47)  was  subject  to  an  important  right, 
in  Section  22(c) ,  of  the  author  to  terminate  the  transfer  beginning 
in  the  first  year  of  the  extra  19  years  (year  57  of  the 


^^  Copyright  Law  Revision  Part  6:  Supplementary  Report  of  the 
Register  of  Copyrights  on  the  General  Revision  of  the  U.S. 
Copyright  Law;  1965  Revision  Bill.  89th  Cong.,  1st  Sess.  71  (House 
Comm.  Print  1965) . 

^^  Id.  at  77-107,  229,  235-237,  247,  252-254,  376-377.  But  see 
id.  at  263-267,  279,  299-300,  353-356,  370,  375-376,  382-383,  413. 

^*  Id.  at  104,  108,  230,  353,  357-358,  360-362. 

^^  Id.  at  238-239,  248,  258-259,  317,  370,  374,  379,  385,  392- 
393,  415 

^^  Copyright  Law  Revision  Part  3;  Preliminary  Draft  for 
Revised  U.S.  Copyright  Law  and  Discussions  and  Comments  on  the 
Draft  (Sept.  1964). 

^^  See  Copyright  Law  Revision  Part  4;  Further  Discussions  and 
Comments  on  Preliminary  Draft  for  Revised  U.S.  Copyright  Law.  88th 
Cong.,  2d  Sess.  17  (House  Comm.  Print  1964). 


329 

14 
copyright) .^^ 

With  respect  to  terminations  of  transfer  of  works  created 
after  the  effective  date  of  the  new  law  (as  well  as  transfers 
executed  after  that  date) ,  the  Office  offered  two  alternatives  in 
Section  16.  Alternative  A  contained  an  inalienable  20  year  limit  on 
transfers.  Alternative  B  permitted  authors  or  their  successors  to 
bring  suit  to  recover  strikingly  disproportionate  profits  received 
by  the  assignee  beginning  20  years  after  the  transfer. 

For  both  termination  of  transfers  of  "old"  and  "new"  works, 
the  draft  provided  that  a  licensed  derivative  work  prepared  before 
termination  could  continue  to  be  exploited  according  to  the  terms 
of  the  license  after  termination,  but  no  new  derivative  works  could 
be  created.  This  right  was  particularly  important  to  motion  picture 
companies  and  encyclopedia  publishers,  whose  works  frequently 
included  multiple  contributions. 

In  Copyright  Office  meetings  on  the  draft,  then  Chief  of  the 
Examining  Division  Barbara  Ringer,  in  discussing  Section  16  stated 
that  the  section  had  proved  to  be  quite  controversial,  with  strong 
opposition. ^^  At  the  same  time,  though,  she  added  a  belief  that 
the  support  for  "the  basic  principle  [that]  some  sort  of  time 
limitation  on  transfers  of  copyright  ownership  may  be  as  strong  and 
deep-seated  as  the  opposition."* 

Opposition  to  the  section  was  voiced  by  the  motion  picture 
industry*^  and  the  book  publishers*^  who  argued  that  contractual 


^^  A  written  notice  of  termination  had  to  be  served  on  the 
transferee  six  months  before  the  termination  became  effective,  and 
had  to  be  recorded  in  the  Copyright  Office.  Unlike  the  bill  passed 
in  1976,  there  was,  though,  no  "window"  within  which  the  notice  had 
to  be  served. 

^'  Copyright  Law  Revision  Part  3  at  277.  . 

*°  Id.  See  also  id.  at  277-278,  explaining  various  positions. 

^^  Id.  at  278-281,  288-289.  Motion  picture  companies  favorably 
remarked  on  a  provision  that  permitted  the  owner  of  a  derivative 
work  (such  as  a  motion  picture  version  of  a  novel)  prepared  under 
the  authorization  of  a  transfer  to  continue  to  exploit  the 
derivative  work  after  termination,  but  believed  that  even  in  cases 
of  non-derivative  works  (as  in  a  screenplay) ,  they  should  be  able 
to  continue  to  exploit  the  work  on  a  non-exclusive  basis  after 
termination.  Copvriaht  Law  Revision  Part  4;  Further  Discussions  and 
Comments  on  Preliminary  Draft  for  Revised  U.S.  Copyright  Law.  88th 
Cong.,  2d  Sess.  40  (House  Coram.  Print  1964).  Although  this  proposal 
appears  reasonable,  in  many  cases  (particularly  with  motion 
pictures) ,  a  non-exclusive  licensee  who  continues  to  exploit  the 


330 


15 

freedom  and  investment  should  be  respected,  as  well  as  music 
publishers,  who  argued  that  the  potential  value  of  many 
compositions  is  not  ascertainable  until  years  after  the  work  is 
published.*^  Authors  groups  "ardently"  supported  a  termination  (or 
as  it  was  also  called,  a  reversion)  right.*'* 

Authors  offered  a  number  of  defenses.  First,  a  single,  unified 
term  of  protection  (whether  75/100  years  or  life  of  the  author  plus 
50  years) ,  would  place  authors  in  a  worse  condition  than  the 
existing  law  unless  a  termination  right  was  provided,*^  since 
under  the  existing  law  contracts  for  both  the  original  and  renewal 
term  were  not  supposed  to  be  enforceable,  and  even  though  the 
Supreme  Court  had  thwarted  Congress's  intent  in  this  respect  in  the 
Fred  Fisher  opinion,*^  if  the  author  died  before  the  renewal  term, 
his  heirs  nevertheless  got  the  copyright  back  free  and  clear  of  all 
assignments.  Second,  the  only  reason  authors  sign  away  their 
copyrights  for  long  periods  of  time  is  the  unequal  bargaining 
position  they  find  themselves  in  in  negotiating  with  publishers. 
And  finally,  "the  basic  terms  of  a  book  contract  are  the  seune 
wherever  you  go,"  including  a  requirement  that  the  author  assign 
both  the  original  and  renewal  term.*'  This  conclusion  was 
supported  by  a  reputed  statement  from  a  book  publisher  that,  "I 
have  never  in  my  entire  publishing  experience  accepted  a  grant  of 
rights  to  publish  a  book  for  only  one  term.  I  hope  I  never  have  to. 
I  know  of  no  other  publisher  who  has  ever  accepted  a  grant  of  only 
a  single  term.  We  all  accept  grants  of  only  the  original  and 
renewal  terms, "*^ 

It  was  argued  that  authors,  not  publishers,  should  benefit 
from  any  extension  of  term  (beyond  the  then-granted  56  years)  for 
subsisting  copyrights  because  publishers  had  only  bargained  and 


work  may,  as  a  practical  matter,  preclude  the  author  from  marketing 
the  work  to  anyone  else, 

*2  Id.  at  281-283,  290-292,  300,  341-343. 

^^   id,  at  283. 

**  Id,  at  286-287,  293-295,  296-197. 

^^  See  Copyright  Law  Revision  Part  5;  1964  Revision  Bill  with 
Discussions  and  Comments.  89th  Cong.,  1st  Sess,  161  (House  Comm. 
Print  1965) (remarks  of  Harriet  Pilpel) . 

*^  See  page  11. 

*''  Id.  at  287. 

^®  Copyright  Law  Revision  Part  5;  1964  Revision  Bill  with 
Discussions  and  Comments.  89th  Cong.,  1st  Sess.  155-156  (House 
Comm.  Print  1965) . 


331 


16 

paid  for  a  56  year  term.  The  Authors  Guild  of  America  declared, 
referring  to  the  then  existing  28-year  renewal  term  and  the 
proposed  extension  of  that  term  by  19  years: 

[Book  publishers]  sit  down  and  carefully  estimate 
what  their  50  percent  share  of  those  28  years  of 
earnings  will  be,  and  they  pay  a  modest  portion  of 
it  as  an  advance. 

I  don't  see  how  they'd  be  hurt  one  iota  if  they 
don't  get  the  next  19  years  ...  .  [T]hey  haven't 
paid  for  it  or  bargained  for  it.  They've  simply 
computed  the  value  of  a  2 8 -year  annuity,  and  they've 
had  a  full  and  fair  opportunity  to  recover  that  and  a 
profit  as  well.^' 

Similarly,  the  American  Guild  of  Authors  and  Composers  stated 
that 

[Music  publishers]  aren't  bargaining  for  any  more 
than  28  years.  They're  not  giving  an  advance  of  $15,000 
saying,  "Well,  $13,000  for  28  years  and  $2,000  if  we  get 
a  few  more  years  if  [Congress]  extend[s]  the  law."  They 
are  bargaining  for  28  years,  and  they  have  thrown  in  the 
other  wording  on  the  theory  that  "if  we  can  get  it 
good;  if  we  can't  well  then  we  have  lost  just  a  few 
words.  We  haven't  lost  a  single  dollar. "^^ 

This  reference  to  "other  wording"  was  to  a  previous  statement 
by  an  attorney  whose  firm  had  been  representing  music  publishers 
since  1919,  and  had  inserted  the  following  language  in  all 
contracts  with  songwriters: 

If  the  copyright  law  of  the  United  States  now  in  force 
shall  be  changed  or  amended  so  as  to  provide  for  an 
extended  or  longer  term  of  copyright,  then  the  writer 
hereby  sells,  assigns,  transfers,  and  sets  over  unto 
the  publisher,  its  successors  and  assigns  or  designees, 
all  his  right,  title,  and  interest  in.  and  to  said  musical 
compositions  covered  by  this  agreement,  for  such  extended 
or  longer  term  of  copyright.^ 

This  practice  of  inserting  this  clause  in  contracts  was 
common.  ^^  These  are,  though,  the  contracts  that  H.R.  989  will. 


Id.  at  43.  But  see  criticism  of  this  characterization  of 
"advances,"  id,  at  45,  and  its  defense,  id. 

^°  Idj.  at  42. 

^^  Id.  at  39. 

^^  See  id.  at  41,  45. 


332 


17 

unless  amended,  enforce:  contracts  dreamed  up  by  lawyers  as  early 
as  1919  (ten  years  after  the  1909  Act)  on  the  off-chance  that  some 
time  in  the  distant  future  Congress  might  extend  the  term,  and  if 
and  when  that  occurred,  maybe,  just  maybe,  Congress  would  let  them 
get  away  with  boilerplate  language  assigning  publishers  all  future 
rights,  even  though  those  rights  had  not  been  paid  for. 

The  1964  Revision  Bills 

In  1964,  the  first  revision  bills  were  introduced. ^^  Section 
20(a)  of  the  bills  adopted,  for  new  works,  the  term  of  life  of  the 
author  plus  50  years,  or,  where  the  work  was  not  created  by  an 
individual,  75  years  from  first  publication  or  100  years  from 
creation,  whichever  occurred  first. ^*  For  old  act  works,  the  bills 
kept  the  durational  structure  of  the  1909  Act:  an  original  term  of 
28  years  plus  a  renewal  term  of  28  more  years  (if  timely  applied 
for) ,  but  as  in  the  1963  preliminary  draft,  an  extra  19  years  was 
tacked  on  to  the  renewal  term  for  a  total  of  75  years:  28+28+19. 

Again,  as  in  the  1963  draft,  there  were  termination  of 
transfer  provisions  both  for  assignments  executed  before  the 
effective  date  of  the  bills  (governing,  therefore,  the  extra  19 
years)  and  for  assignments  executed  after  the  effective  date 
(governing,  mostly,  but  not  exclusively  works  with  a  life  of  the 
author  plus  50  years  term) . 

For  assignments  of  "old  act"  works,  the  author  or  his  heirs 
could  terminate  the  extra  19  years  beginning  in  the  first  year  of 
the  extra  19  years  (i.e.,  in  year  57  of  the  copyright)  if  they  had 
served  a  written  notice  on  the  assignee  one  year  before  the 
effective  date  of  the  termination  and  recorded  a  copy  of  the  notice 
with  the  Copyright  Office. ^^  For  assignments  of  "new  act"  works, 
the  assignment  could  be  terminated  at  any  time  beginning  35  years 
after  the  execution  of  the  assignment,  but  notice  of  termination 
had  to  be  made  two  years  before  the  effective  date.^^ 

For  both  termination  of  transfers  of  "old"  and  "new"  works, 
the  draft  provided  that  a  licensed  derivative  work  prepared  before 


^^  S.  3008,  H.R.  11947,  H.R.  12354,  88th  Cong.,  2d  Sess, 
(1964) . 

^^  The  bill  also  provided  for  a  uniform,  federal  system  by 
protecting  all  unpublished  works. 

^^  As  with  the  1963  draft,  there  was  no  "window"  period  within 
which  the  notice  had  to  be  filed. 

^^  For  new  act  (but  not  old  act)  transfers,  there  were 
exclusions  from  the  termination  right  for  transfers  by  will  and 
works  made  for  hire. 


333 


18 


termination  could  continue  to  be  exploited  according  to  the  terms 
of  the  license  after  termination,  but  no  new  derivative  works  could 
be  created. 

Discussions  on  the  bills  held  at  the  Copyright  Office  with 
private  sector  groups  showed  strong  opposition  to  the  reversion 
(termination  of  transfer)  provisions  by  book  and  music 
publishers^'  and  by  the  motion  picture  and  television  industries, 
who  described  the  provisions  as  "at  best  misguided  paternalism." 
Authors'  groups  defended  the  provisions  as  essential  to  preserving 
the  status  quo  authors  were  supposed  to  enjoy  under  the  1909  Act 
and  as  protecting  authors  from  the  unequal  bargaining  leverage  of 
purchasers  of  copyright. ^°  At  the  same  time,  authors' 
representatives  objected  to  making  the  author  wait  35  years  before 
a  "new  act"  transfer  could  be  terminated,  noting  that  in  his  1960 
report  to  Congress,  the  Register  had  indicated  the  period  should  be 
20  years,  and  that  the  1963  draft  bill  had  set  the  date  at  25 
years . *^ 


The  1965  Bills  and  House  hearings.  Register  of  Copyrights' 
1965  Report 

The  1965  revision  bills^^  retained  the  1964  bills'  provisions 
on  duration,  but  made  extensive  changes  in  the  termination 
provisions  that  greatly  complicated  them  for  authors,  thus  ensuring 
that  their  utility  would  be  greatly  diminished.  The  changes. 


^'  See  Copvriaht  Law  Revision  Part  5;  1964  Revision  Bill  with 
Discussions  and  Comments.  89th  Cong.,  1st  Sess.  154-155,  156,  157, 
222,  225-226  (House  Comm.  Print  1965). 

The  book  publishers  characterized  the  provisions  as 
"intolerable"  and  stated  their  "unequivocal  opposition  to  any  form 
of  reversion,"  claiming  that  out-of-print  clauses  vesting  the 
copyright  back  in  the  author  if  the  book  remained  out  of  print  for 
five  years  adequately  protected  authors.  The  out-of-print  argument 
was  plainly  ridiculous:  publishers  were  willing  to  give  the 
copyright  back  to  the  author  only  when  they  determined  the  work  no 
longer  had  any  commercial  value. 

^^  Id.  at  160,  162,  299-300. 

^'  See  page  11. 

^°  Id.  at  155-156,  157,  158,  162,  163,  240-250,  257  (making 
suggestions  for  amendments) . 

^^  Id.  at  241. 

"  S.  3008,  H.R.  11947,  89th  Cong.,  1st  Sess.  (1965). 


334 


19 


nevertheless,  or  perhaps  predictably,  reflected  a  compromise  that 
had  been  worked  out.*^  With  the  exception  of  amendments  made  in 
1966  clarifying  who  may  terminate  and  specifying  the  allocation  of 
the  terminated  interests, ^^  the  termination  provisions  in  the  1965 
bills  are  identical  to  those  incorporated  in  the  1976  Act.  This 
fact  is  significant  because  it  demonstrates  that  the  parties  stuck 
with  the  compromise  for  eleven  years  while  the  revision  process 
struggled  through  a  number  of  explosive  issues.  Indeed,  the 
compromise  has  been  followed  by  all  the  parties  until  last  month, 
Jxine  1995,  when  music  publishers  at  the  Pasadena  hearing  indicated 
they  would  send  the  Subcommittee  a  proposed  amendment  to  Section 
203  further  delaying  the  35  year  termination  period. 

The  differences  between  the  1964  and  1965  bills  are  as 
follows:  (1)  the  1965  bills  permitted  nonexclusive  licenses  to  be 
terminated^^ ;  (2)  transfers  of  copyrights  in  wills  were  excluded 
from  the  termination  right;  (3)  termination  was  limited  to  the 
author,  or  if  he  was  deceased,  his  widow  and  children;"*  (4)  under 
Section  203,  termination  could  be  made  only  during  a  five  year 
window  commencing  at  the  end  of  35  years  from  the  execution  of  the 
transfer;^'  (5)  the  termination  notice  could  be  served  not  less 
than  2  or  more  than  10  years  before  the  effective  date  of  the 
termination,  with  recordation  made  a  condition  of  the 
termination ;^°  (6)  where  the  author  was  deceased,  the  termination 
notice  had  to  be  filed  by  all  those  entitled  to  terminate;^^  (7) 


^^  See  Copyright  Law  Revision:  Hearings  on  H.R.  4347  et  al 
Before  the  Subcomm.  on  Courts.  Civil  Liberties  and  the 
Administration  of  Justice  of  the  House  Judiciary  Comm. .  89th  Cong. , 
1st  Sess.  148-149  (1965);  Mills  Music,  Inc.  v.  Snyder,  469  U.S. 
153,  17-176  (1985) .  The  compromise  also  involved  amending  the  work- 
for-hire  provisions  in  publishers'  favor. 

^'^  See  H.R.  4347  as  reported  by  the  House  Judiciary  Committee, 
H.R.  REP.  NO.  2237,  89th  Cong.,  2d  Sess.  (Oct.  12,  1966). 

^^  The  1964  bills  Were  limited  to  exclusive  licenses. 

^^  The  1964  bills  included  legal  representatives  and 
legatees. 

^'  The  1964  bills  permitted  the  termination  to  be  filed  at  any 
time  after  the  35  years  had  elapsed. 

^°  The  1964  bills  had  the  2  year,  but  not  the  10  year 
provision.  They  also  required  recordation  with  the  Copyright 
Office,  but  did  not  state  that  the  failure  to  record  rendered  the 
termination  ineffective. 

^'  By  contrast,  the  1964  bills  more  liberally  required  only  a 
"written  notice." 


335 


20 


to  ensure  that  the  termination  right  was  inalienable  and 
unwaivable,  no  agreement  to  transfer  rights  after  termination  would 
be  valid  unless  entered  into  after  termination  had  occurred,  with 
the  exception  that  a  future  agreement  between  the  author  and  the 
original  transferee  would  be  valid  if  entered  into  after  the  notice 
of  termination  has  been  filed;  (8)  the  proportionate  shares  between 
the  widow  and  children  were  specified. 

In  preparation  for  the  first  congressional  hearings  on  the 
revision  effort,  Register  of  Copyrights  Abraham  Kaminstein  issued 
a  supplementary  report. '°  The  report  traces  the  origins  of  the 
termination  of  transfer  provisions  to  the  failure  of  the  1909  Act 
to  adequately  give  authors  a  second  bite  at  the  apple. 
Although  noting  the  objections  of  publishers  and  the  motion  picture 
industry,  who  asserted  that  authors  are  not  generally  in  a  poor 
bargaining  position,  the  Register  concluded  that  the  Copyright 
Office  "remained  committed  to  the  general  principle  of  reversion  as 
one  of  the  most  important  elements  of  the  copyright  law  revision 
program."'^ 

At  hearings  before  the  House  in  1965,  the  parties  noted  their 
individual  wishes  that  the  bill  had  been  more  favorable  to  them, 
but  stuck  by  their  compromise  on  termination,  and  strongly 
supported  the  life  plus  50  term.'-' 

How  the  Term  of  Protection  Provisions  in  the  1976  Act  Work 

The  1976  Act's  treatment  of  duration  may  be  divided  into  three 
parts:  (1)  works  created  on  or  after  January  1,  1978;  (2)  works 
unpublished  and  unregistered  on  January  1,  1978. 

Works  Created  On  or  After  January  1,  1978:  Section  302 


'°  Copyright  Law  Revision  Part  6;  Supplementary  Report  of  the 
Register  of  Copyrights  on  the  General  Revision  of  the  U.S. 
Copyright  Law:  1965  Revision  Bill.  89th  Cong.,  1st  Sess.  (House 
Comm.  Print  1965) . 

''^  Id.  at  71-72. 

'2  Id.  at  72. 

'^  See  Copyright  Law  Revision:  Hearings  on  H.R.  4347  Before 
Subcomm.  No.  3  of  the  House  Judiciary  Comm. .  89th  Cong.,  1st  Sess. 
82-84,  92-94,  95-96,  1761-1765  (Authors  League) ;  129,  142,  147-148 
(book  publishers);  162-164  (magazine  publishers);  228-234,  239, 
242-245  (American  Guild  of  Authors  &  Composers);  251,  255,  257 
(magazine  photographers);  996-997.  1010,  1035-1037,  1048-1049 
(motion  picture  companies);  1866-1870  (Copyright  Office) (1965) . 


336 


21 


For  this  category  of  work,  the  1976  Act  adopted  a  basic  term 
of  life  of  the  author  plus  50  years.  Where  the  work  is  made  for 
hire,  anonymous,  or  pseudonymous  the  term  is  75  years  from  first 
publication  or  100  years  from  creation,  whichever  occurs  first. 

Works  Unpublished  and  Unregistered  on  January  1,  1978: 
Section  303 

This  category  encompasses  works  formerly  under  perpetual  state 
common  law  copyright.  The  1976  Act  preempts  that  state  protection 
and  substitutes  a  somewhat  complicated  system.  The  minimum  term  of 
protection  for  these  works  is  December  31,  2002,  but  if  the  work  is 
published  before  that  date,  the  term  is  extended  until  December  31, 
2027.  Alternatively,  if  a  longer  term  is  possible  under  the  life 
plus  50  regime,  that  regime  is  applied. 

Works  Pxiblished  Before  January  1,  1978 

These  works  were  formerly  governed  by  the  1909  Act's  28+28 
year  term:  28  years  from  first  publication,  with  another  28  year 
renewal  term  if  a  timely  renewal  was  filed.  The  1976  Act 
essentially  incorporated  the  1909  Act's  term  structure  into  the 
1976  Act  for  these  works,  but  added  on  an  additional  19  years  to 
the  renewal  term  for  a  possible  total  of  75  years  (28+28+19).  Where 
a  work  was  in  its  first  term  on  January  1,  1978,  a  timely  renewal 
application  still  had  to  be  filed.'*  If  the  renewal  application 
was  timely  filed,  the  author  was  granted  a  47  year  renewal  term.  If 
the  work  was  in  its  renewal  term  on  January  1,  1978,  it  was 
automatically  granted  a  47  year  term. 

Termination  of  Transfers 

At  an  August  1964  meeting  at  the  Copyright  Office  with  the 
private  sector  on  the  first  revision  bills,  an  in-house  lawyer  for 
Time,  Inc.  expressed  an  opinion  that  the  termination  of  transfer 
provisions  would  not  help  authors  because  they  were  too  complicated 
and  would  instead  "realistically"  only  benefit  private  sector 
attorneys  "who  are  going  to  make  a  lot  of  money  out  of  it."'^  This 
comment  was  made,  interestingly,  before  the  provisions  became 
appreciably  more  onerous  for  authors  in  the  1965  bills.  Evidence 
being  compiled  by  the  Copyright  Office  for  this  hearing  bears  out 
the  prediction. 


'*  This  requirement  was  finally  abandoned  in  the  Automatic 
Renewal  Act  of  1992,  Act  of  June  26,  1992,  Pub.  L.  No.  102-307 
(title  I),  102d  Cong.,  2d  Sess.,  106  Stat.  264,  but  that  act  only 
governs  works  that  were  first  published  between  1964  and  1977. 

'^  See  Copyright  Law  Revision  Part  5:  1964  Revision  Bill  with 
Discussions  and  Comments.  89th  Cong.,  1st  Sess.  166  (House  Comm. 
Print  1965) (remarks  of  E.  Gabriel  Perle) . 


337 


22 

There  are  two  termination  of  transfer  provisions  in  the  1976 
Act,  Sections  203  and  Section  304(c).  They  are  very  similar,  but 
not  identical.  Section  304(c)  governs  transfers  and  licenses 
executed  before  January  1,  1978  and  thus  is  limited  to  1909  Act 
works  whose  term  is  measured  from  the  date  of  first  publication. 
Section  203  covers  transfers  and  licenses  executed  on  or  after 
January  1,  1978  and  thus  covers  three  categories  of  works:  (1) 
works  that  were  subject  to  common  law  copyright  on  January  1,  1978; 
(2)  works  protected  under  the  1909  Act  that  were  in  their  first  or 
renewal  term  on  January  1,  1978,  but  where  the  transfer  or  license 
was  executed  on  or  after  that  date;  and  (3)  works  created  on  or 
after  January  1,  1978,  and  thus  governed  by  the  term  structure  of 
the  1976  Act.  The  possibility  of  termination  under  Section  304(c) 
began  on  January  1,  1978.  Terminations  under  Section  203  cannot 
begin  until  January  1,  2013. 

Termination  under  Section  304(c) 

The  termination  right  under  Section  304(c)  is  only  for  the 
extra  19  years  added  on  to  the  28  renewal  term  of  the  1909  Act.  The 
provision  is  quite  complex: 

(1)  Grants  covered 

(a)  exclusive  or  nonexclusive  transfers  or 
licenses  of  renewal  rights 

(b)  executed  before  January  1,  1978 

(c)  by  a  renewal  claimant  covered  by  the 
second  proviso  of  Section  304(c) 

(d)  with  respect  to  a  work  in  its  first 

or  renewal  term  of  statutory  protection 

(2)  Persons  who  may  exercise  the  right 

(a)  as  to  grants  by  author(s): 

(i)   the  author (s)  to  the  extent  of  the 
author's  interest  (§304 (c) (1) )  ; 

(ii)  if  an  author  is  dead,  by  owners  of  more 

than  one  half  of  the  author's  termination 
interest,  such  interest  being, owned  as  follows: 

(A)  by  surviving  spouse  if  no  children 
or  grandchildren; 

(B)  by  children  and  surviving  children  of 
dead  child  if  no  surviving  spouse,  per 
stirpes  and  by  majority  action;  or 

(C)  shared,  one  half  by  widow (er)  and  one 
half  by  children  and  deceased  child's 
children  (§304 (c)(1)  and  (4)). 

(b)  as  to  grants  by  others  —  all  surviving  grantors 
(§304(c) (1)  and  (4)). 

(3)  Effective  date  of  termination 

(a)  designated  time  during  five  year  period 
commencing  on  later  of: 

(i)   beginning  of  fifty-seventh  year  of  copyright  or 
(ii)  January  l,  1978  (§304 (c) (3) ) . 


338 


23 

(b)  upon  2  —  10  years  notice  ($304 (c) (4) ) . 

(4)  Manner  of  Terminating 

(a)  written  and  signed  notice  by  required  persons 
or  agent's  to  grantee  or  grantee's  "successor 
in  title" 

(b)  specification  of  effective  date,  within  above  limits 

(c)  form,  content,  and  manner  of  service  in  accordance 
with  Copyright  Office  regulation  (§304 (c) (4) (B) ) ; 
37  C.F.R.  §201.10)''^ 

(d)  recordation  with  the  Copyright  Office  before 
the  effective  date  (§304 (c) (4) (A) ) 

(5)  Effect  of  termination 

(a)  of  grant  by  author 

(i)  reversion  to  that  author,  or  if  dead,  those 
owning  the  author's  termination  interest 
(including  those  who  did  not  join  in  signing 
the  termination  notice)  in  proportionate 
shares  (§304 (c)(6)  and  (c)(6)(C)) 

(b)  of  grant  by  others  —  reversion  to  all  entitled 
to  terminate  (§304 (c)(6)) 

(c)  in  either  case,  future  rights  to  revert  upon 
proper  service  of  notice  of  termination 
(§304) (c) (6)  (B)). 

(6)  Exceptions  to  termination 

(a)  works  made  for  hire  are  not  subject  to  termination 

(b)  dispositions  by  will  are  not  subject  to  termination 


'^  These  regulations  require  that  the  notice  be  served  upon 
each  "grantee"  whose  rights  are  being  terminated,  or  "the  grantee's 
successor  in  title,"  by  personal  service,  or  by  first-class  mail 
sent  to  an  address  "which,  after  a  reasonable  investigation,  is 
found  to  be  the  last  known  address  of  the  grantee  or  successor  in 
title,"  37  CFR  §201. 10 (d) (1) ,  The  regulation  further  provides  that 
"a  reasonable  investigation"  includes  but  is  not  limited  to  a 
search  of  the  records  in  the  Copyright  Office.  Id.  §201, 10(d) (3) . 
In  the  case  of  musical  performing  rights,  a  report  from  a 
performing  rights  society  identifying  the  person (s)  claiming 
current  ownership  of  the  rights  being  terminated  is  sufficient.  Id. 
For  a  discussion  of  the  term  "successors  in  title,"  see  Burroughs 
V.  MGM,  491  F.  Supp.  1320  (SONY  1980);  519  F.  Supp.  388  (SONY 
1981),  aff 'd.  683  F.2d  610  (2d  Cir.  1982).  One  issue  in  Burroughs 
was  the  meaning  of  "successors  in  title."  Is  the  term  limited  to 
transferees  of  exclusive  rights,  or  does  it  also  include 
nonexclusive  licenses?  Although  the  issue  was  not  reached  by  the 
Second  Circuit  majority.  Judge  Newman,  in  a  concurring  opinion, 
reasoned  that  since  the  Copyright  Office  regulations  speak  of 
providing  for  a  reasonable  investigation  of  "ownership,"  and  since 
under  Section  101  of  the  Act  a  "transfer  of  ownership"  includes 
assignments  and  exclusive  licenses  but  excludes  nonexclusive 
licenses,  see  17  USC  §101,  the  term  must  be  construed  accordingly. 
This  reading  of  "successor  in  title"  is  believed  to  be  correct. 


339 


24 


(c)  derivative  works  prepared  under  a  transfer  or 
licensee  executed  prior  to  termination  may  continue 
to  be  utilized  under  the  terms  of  the  transfer, 
but  with  no  right  to  make  new  derivative  rights 
(S304(c)(6)(A))" 

(d)  rights  that  arise  under  any  other  federal  statute  or 
under  any  state  or  foreign  law  are  not  affected 
(S304(c) (6) (E)). 

(7)  further  grants  of  terminated  rights 

(a)  each  owner  is  regarded  as  a  tenant  in  common 
except  that  a  further  grant  by  owners  of  a 
particular  deceased  author's  terminated  rights 
must  be  in  the  same  number  and  proportion  of 

his  or  her  beneficiaries  as  required  to  terminate, 
but  then  binds  them  all,  including  nonsigners, 
as  to  such  rights 

(b)  must  be  made  after  termination,  except  that,  as  to 
original  grantee  or  successor  in  title,  it  may 

be  after  notice  of  termination. 


While  there  is  no  form  for  termination  notices.  Copyright 
Office  regulations  specify  that  the  notice  must  contain  a  "complete 
and  unambiguous  statement  of  facts  . . .  without  incorporation  by 
reference  of  information  in  other  documents  or  records,"^"  and 
include  the  following: 

(1)  the  name  of  each  grantee  whose  rights 
are  being  terminated  and  each  address 
at  which  service  is  made; 

(2)  the  title  and  the  name  of  at  least  one 
author  of,  and  the  date  copyright  was 


""  In  Mills  Music,  Inc.  v.  Snyder,  469  U.S.  153  (1985),  the 
Supreme  Court  reversed  a  lower  court  opinion  construing  this 
provision  as  granting  the  author  all  of  the  royalties  from  the 
exploitation  of  the  sublicensed  derivative  works  after  termination 
of  the  original  grant.  Under  Mills  Music,  middlemen  (transferees 
who  have  granted  sublicenses)  are  entitled  to  share  in  the 
royalties  from  the  derivative  work's  continued  exploitation 
according  to  the  terms  of  the  original  contract.  See  former 
Register  of  Copyrights  Barbara  Ringer's  criticism  of  Mills  Music  in 
Civil  and  Criminal  Enforcement  of  the  Copvright  Laws;  hearing 
Before  the  Subcomm.  on  Patents.  Copyrights,  and  Trademarks  of  the 
Senate  Judiciary  Comm. .  99th  Cong.,  1st  Sess.  79-95  (1985);  and 
generally  The  Copyright  Holder  Protection  Act;  Hearings  on  S.  1634 
Before  the  Subcomm.  on  Patents.  Copyrights,  and  Trademarks  of  the 
Senate  Judiciary  Comm. .  99th  Cong.,  1st  Sess.  (1985). 

'^  37  CFR  S201.10(b) (2) . 


340 


25 

originally  secured  in,  each  works  to 
which  the  notice  applies  (including  if 
available  the  copyright  registration 
number) ; 

(3)  a  brief  statement  reasonably  identifying 
the  grant  being  terminated; 

(4)  the  effective  date  of  the  termination; 

(5)  the  name,  actual  signature,  and  address 
of  the  person  executing  the  termination. '' 


In  the  case  of  works  consisting  of  a  series  or  containing 
characters,  special  care  has  to  be  taken  to  list  separately  each 
and  every  work  in  the  series  or  all  works  in  which  the  character 
appears.  °  A  complete  copy  of  the  termination  notice  must  be 
recorded  with  the  Copyright  Office  before  its  effective  date  of 
termination,  and  such  recordation  must  be  accompanied  by  a 
statement  setting  forth  the  date  on  which  the  notice  of  termination 
was  served  and  the  manner  of  service  (unless  the  information  is 
already  contained  in  the  notice) ^■'^  and  by  the  prescribed  fee.®^ 

The  Section  304(c)  termination  right  is  inalienable  and 
unwaivable,^-'  but  further  grants  may  be  made  after  termination. 
An  agreement  to  make  a  further  grant  may  be  made  after  the  notice 
of  termination  has  been  given  (but  before  termination  is  effective) 
if  that  agreement  is  made  between  the  author  or  designated 


'^  37  CFR  SS201. 10(b) (1)  and  (c)(1),  (4).  A  duly  authorized 
agent  may  also  sign  the  notice  but  care  should  be  taken  to  clearly 
identify  the  person(s)  on  whose  behalf  the  agent  is  acting.  37  CFR 
§201. 10(c) (3) . 

^°  See  Burroughs  v.  MGM,  491  F.  Supp.  1320  (SONY  1980);  519  F. 
Supp.  388  (SONY  1981),  aff 'd.  683  F.2d  610  (2d  Cir.  1982)  (a  notice 
of  termination  listing  35  titles  (including  the  first  "Tarzan" 
story) ,  but  omitting  five  sequels  in  which  the  character  Tarzan 
appeared,  was  found  to  be  ineffective  in  preventing  the  grantee's 
continued  use  of  the  Tarzan  character).  Cf.  Judge  Newman's 
concurring  opinion,  in  which  although  agreeing  in  the  result,  he 
disagreed  on  the  effect  of  not  terminating  the  five  sequels, 
reasoning  that  the  right  to  base  a  motion  picture  on  those  sequels 
would  permit  uses  not  derived  from  the  sequels. 

^^  37  CFR  §201. 10(f) (i) ,  (ii) . 

^^  37  CFR  §201. 10(f) (2) . 

"  17  use  §304  (c)(5):  "Termination  of  the  grant  may  be 
effected  notwithstanding  any  agreement  to  the  contrary,  including 
an  agreement  to  make  a  will  or  to  make  any  future  grant." 


341 


26 


Statutory  successors  and  the  original  grantee.^*  This  provision, 
erroneously  described  sometimes  as  a  "right  of  first  refusal,"  does 
not  give  the  original  grantee  a  right  to  conclude  such  an 
agreement;  it  only  means  that  if  such  an  agreement  is  made,  it  will 
be  enforceable.^^ 

Termination  Under  Section  203 

Section  203 's  provisions  are  similar  but  not  identical  to 
Section  304(c),  but  are  equally  complex: 

(1)  Grants  covered 

(a)  exclusive  or  nonexclusive  transfers 
or  licenses 

(b)  executed  on  or  after  January  1,  1978 

(c)  by  an  author 

(d)  as  to  any  work 

(i)   created  before  or  after  January  1,  1978; 
(ii)  subject  to  common  law  copyright  ($303); 
(iii)in  first-term  copyright  (§304 (a)); 
(iv)  in  renewal  term  (§304 (b)) 

(2)  Persons  who  may  exercise  right 

(a)  the  author  or  a  majority  of  the  authors 
who  exercised  it  (§203 (a) (1) ) ; 

(b)  if  the  author  is  dead,  his  or  her  right 
may  be  exercised  by  (or  if  the  author  was  a 
joint  author, the  author's  interest  may  be 
"voted"  by)  majority  action  of  the  owners  of 
more  than  one  half  of  author's  termination 
interest,  such  interest  being  owned  as  follows: 

(i)  by  surviving  spouse  (if  no  children 
or  grandchildren) 

(ii)  by  children  and  surviving  children  of 
deceased  child  (if  no  surviving  spouse) 
per  stirpes  and  by  majority  action  or 
(iii)  shared,  one  half  by  widow  and  one 
half  by  children  and  deceased  child's 
children. 

(3)  Effective  date  of  termination  (§203(aJ(3)) 

(a)  designated  time  during  36th  through  40th 
year  after  grant  or 

(b)  if  grant  covers  right  of  publication, 
designated  time  during  five  year  period 
beginning  on  the  earlier  of  the  following 
dates : 

(i)   35  years  after  publication 
(ii)  40  years  after  grant. 


^^  17  use  §304(C) (6) (D) (1978) . 

®^  Bourne  v.  MPL  Communications,  675  F.  Supp.  859  (SONY  1987), 
678  F.  Supp.  70  (SONY  1987). 


342 


27 

(4)  Manner  of  terminating 

(a)  written  and  signed  notice  by  required 
persons  to  "grantee  or  grantee's  successor 
in  title"  (§203 (a) (4)) 

(b)  specification  of  effective  date,  within 
above  limits  (§203 (a) (3)) 

(c)  form,  content,  and  manner  of  service  in 
accordance  with  Copyright  Office  regulations 
(S203(a) (4) (B) ;  37  CFR  §201.10) 

(d)  recordation  in  Copyright  Office  before 
effective  date  (S203 (a) (4) (A) 

(5)  Effect  of  termination 

reversion  to  author,  authors,  or  others  owning 
author's  termination  interest  (including  those 
who  did  not  join  in  signing  termination  notice) 
in  proportionate  shares  (§203 (b)). 

(6)  Exceptions  to  termination 

(a)  work  made  for  hire  are  not  subject  to  termination; 

(b)  dispositions  made  by  will  are  not  subject  to 
termination ; °^ 

(c)  derivative  works  prepared  under  a  transfer  or 
license  executed  prior  to  termination  may  continue  to  be 
utilized,  but  with  no  right  to  make  a  new  derivative 
work  (§203 (b) (1) 

(d)  rights  that  arise  under  other  federal  statute  or 
under  any  state  or  foreign  law  are  not  affected 
(§203(b) (5)). 

(7)  Further  grants  of  terminated  rights  (§203(b)(3)) 

(a)  must  be  made  by  same  number  and  proportion  of 
owners  required  for  termination,  then  binds  all 
(§203(b) (3)) 

(b)  must  be  made  after  termination,  except,  as  to 
original  grantee  or  successor  in  title,  may  be  made 
after  notice  of  termination  (§203 (b) (4) ) . 

The  key  distinctions  between  termination  rights  under  Section 
304(c)  and  203  may  be  summarized  as  follows: 

Section  304(c)  Section  203 

Grants  covered 

Before  January  1,  1978        On  or  after  January  1,  1978 


®^  See  Larry  Spier,  Inc.  v.  Bourne  Co.,  953  F.2d  774  (2d  Cir. 
1992)  for  a  discussion  of  this  provision. 


343 


By  author  or  other  "second 
proviso"  renewal  beneficiary 

Of  renewal  right  in 
statutory  copyright 


28 
By  author^"' 

Of  any  right  under  copyright 


Author  or  majority  of  granting 

authors  or  majority  of  their 
respective  beneficiaries,  voting 
as  a  unit  for  each  author  and 
per  stirpes 


Persons  who  mav  exercise 

Author  or  majority  interest 
of  statutory  beneficiaries 
(per  stirpes)  to  the  extent 
of  that  author's  share;  or 

In  case  of  grant  by  others, 
all  surviving  grantors 

Beginning  of  five-vear 
termination  period 

End  of  56  years  of  copyright   End  of  35  years  from  grant  of,  if 
or  January  1,  1978,  covering  publication  right,  either 

whichever  is  later  35  years  from  publication  or  40  years 

from  grant,  whichever  is  earlier 


Further  grants 

Grantors  are  generally 
tenants  in  common  with 
right  to  deal  separately, 
except  where  dead  author ' s 
rights  are  shared,  then 
majority  action  (per 
stirpes)  as  to  that 
author's  share 


Requires  same  number  and  proportion 
as  required  for  termination 


^'  The  reason  for  limiting  the  Section  203  termination  right 
to  the  author  was  explained  as  follows  in  the  Register  of 
Copyrights'  1965  report,  "as  a  result  of  the  present  renewal 
provisions,  a  large  number  of  binding  transfers  and  licenses 
covering  renewal  rights  have  been  executed  by  the  author's  widow, 
children,  and  other  statutory  beneficiaries,  as  well  as  the  author 
himself.  We  believe  that,  for  example,  where  the  author's  widow  was 
the  proper  renewal  claimant  but  had  previously  executed  a  transfer 
of  her  renewal  rights,  she  should  be  able  to  gain  the  extended  term 
after  the  present  28-year  renewal  period  is  over."  SUPPLEMENTARY 
REPORT  OF  THE  REGISTER  OF  COPYRIGHTS  ON  THE  GENERAL  REVISION  OF  THE 
U.S.  COPYRIGHT  LAW:  1965  REVISION  BILL,  89th  Cong.,  1st  Sess.  96 
(House  Comm.  Print  1965} . 


344 


29 

Section  203  also  poses  the  following  conundrum  in  its 
interrelation  with  Section  304(a).  Works  first  copyrighted  as  late 
as  1977  enjoy  both  a  termination  right  and  a  renewal  right.  If  the 
author's  renewal  contingency  does  not  vest,  there  may  be  no 
termination  right  at  all,  since  post-1977  grants  by  other  renewal 
beneficiaries  are  not  terminable  under  Section  203.  Moreover, 
suppose  a  grant  is  made  in  1978  by  an  author  who  later  decides  to 
terminate  at  the  earliest  possible  moment.  To  exercise  the  35-year 
teinnination  right  in  2013,  the  author  may  give  notice  10  years 
earlier,  in  2003.  Although  Section  203  provided  (as  does  section 
304(c))  that  the  future  rights  to  be  terminated  "vest"  upon  service 
of  such  notice,  the  renewal  provision  still  must  be  taken  into 
account,  since  2003  is  only  the  25th  year  of  the  first  term 
copyright.  If  the  author  dies  shortly  after  service  of  the 
termination  notice  and  the  author's  widow(er)  renews  two  years 
later,  what  is  the  effect  of  the  author's  termination  notice?®^ 

The  astonishing  complexity  of  these  provisions  eunply 
demonstrates  why  they  have  not  served  their  purpose  of  permitting 
authors  and  their  families  to  get  a  second  bite  at  the  apple, 
despite  Congress's  86  year  effort  to  do  so.  There  is  no  reason  to 
perpetuate  such  an  obviously  flawed  system.  The  solution  is  simple, 
obvious,  and  effective:  vest  the  proposed  new  20  years  directly  in 
the  author  or  his  heirs, 

H.R.  989 

H.R.  989  seeks  to  extend  the  term  of  copyright  protection  by 
adding  on  an  extra  20  years  for  both  "old  act"  and  "new  act"  works. 
New  act  works  by  individuals  will  go  to  life  of  the  author  plus  70 
years.  New  act  works  that  are  made  for  hire,  anonymous,  and 
pseudonymous  works  and  old  act  works  will  go  to  a  term  of  95  years 
from  first  publication,  or  120  years  from  creation,  whichever 
occurs  first.  The  basic  rationale  for  this  increase  is  the 
reciprocal  nature  of  the  European  Union's  1993  term  directive. 

In  order  to  harmonize  the  various  laws  of  its  member  countries 
toward  the  goal  of  a  single  market  without  (internal)  trade 
barriers,  the  European  Union  ("EU")  has  issued  a  number  of 
directives  establishing  a  single  law  for  all  EU  countries.®^  Some 
of  these  directives  have  been  in  the  field  of  intellectual 
property,  including  copyright.  In  the  case  of  term  of  copyright 
protection,  most  EU  countries  have  a  term  of  life  of  the  author 


°®  See  Dreben,  Section  203  and  a  Call  for  a  Hurried  Review. 
THE  COPYRIGHT  ACT  OF  1976:  DEALING  WITH  THE  NEW  REALITIES  229, 
232-233  (N.J.  Copr.  Soc'y  1977). 

®^  The  directives  are  not  self -executing:  they  must  be 
implemented  by  domestic  legislation  in  each  country. 


345 


30 

plus  50  years,  the  50  years  being  intended  to  benefit  the  author's 
children  and  grandchildren.  A  few  EU  countries,  however,  have  a 
term  of  copyright  longer  than  life  plus  50,  at  least  for  certain 
categories  of  works,  such  as  musical  compositions.  Given  these 
differences  in  term,  the  EU  had  three  choices:  (1)  do  nothing, 
allowing  different  terms;  (2)  issue  a  directive  requiring  all 
member  countries  to  follow  the  predominant  life  plus  50  term  (also 
found  in  the  Berne  Convention  and  in  the  GATT  agreement);  or,  (3) 
issue  a  directive  requiring  all  member  countries  to  adopt  the 
higher  term  found  in  the  minority  number  of  countries. 

The  first  option  was  clearly  undesirable  because  it  would 
perpetuate  the  very  sort  of  inconsistencies  that  directives  are 
intended  to  eliminate.  The  second  option  was  also  believed 
undesirable  because  it  would  take  away  protection  from  authors  in 
countries  that  granted  a  term  longer  than  life  plus  50.'° 
Accordingly,  the  third  option,  harmonizing  the  term  of  protection 
up  was  chosen.  The  EU's  October  29,  1993  directive  on  the  term  of 
copyright  thus  establishes  a  basic  term  of  copyright  of  life  of  the 
author  plus  70  years.  The  directive  is  to  be  implemented  by  EU 
member  countries  by  July  1,  1995.  However,  like  past  EU  Directives, 
most  member  countries  will  take  years  after  that  date  to  actually 
implement  the  directive.  France  has  yet  to  implement  the  1991 
computer  program  directive.  Few  countries  have  implemented  the  term 
directive,  and  thus  internationally,  there  is  no  reason 
precipitously  to  pass  a  bill  this  session  of  Congress. 

with  respect  to  the  question  of  the  term  granted  works  by 
authors  from  non-EU  countries.  Article  7  of  the  directive 
essentially  states  that  works  from  non-EU  countries,  such  as  the 
United  States,  will  be  given  in  the  EU  the  term  of  protection 
granted  by  the  non-EU  country,  and  not  the  term  granted  by  the  EU. 
Thus,  if  the  United  States  grants  a  term  of  life  of  the  author  plus 
50  years,  works  of  U.S.  authors  will  receive  that  term  in  the  EU 
and  not  the  life  plus  70  term  EU  authors  enjoy.  On  the  other  hand, 
if  the  United  States  grants  a  term  of  life  of  the  author  plus  70 
years,  works  of  U.S.  authors  will  receive  that  term  in  the  EU. 

Music  publishers,  the  estates  of  music  composers  who  published 
songs  in  the  1920s  and  1930s,  and  others  have  argued  that  U.S.  law 
needs  to  be  changed  so  that  they  may  take  advantage  of  this  extra 
20  years  protection  in  the  EU.  My  concern  is  not  so  much  with  going 
to  a  life  plus  70  term  (aside  from  the  music  publishers'  Section 
203  proposal)  ,  but  with  how,  for  old  act  works,  authors  can  be 


See  Preface  to  the  Directive,  paragraph  (9)  :  "Vfhereas  due 
regard  for  established  rights  is  one  of  the  general  principles  of 
law  protected  by  the  Community  legal  order;  whereas,  therefore,  a 
harmonization  of  the  terms  of  protection  of  copyright  and  related 
rights  cannot  have  the  effect  of  reducing  the  protection  currently 
enjoyed  by  rightsholders  in  the  Community...  ." 


346 


31 
better  protected  than  they  currently  are  in  H.R.  989, 

As  discussed  above,  the  basic  term  of  copyright  in  the  United 
States  for  works  created  before  January  1,  1978  is  75  years  from 
the  date  of  first  publication,  but  it  is  important  to  realize  that 
this  75  years  is  not  an  undifferentiated  period,  but  is  instead  an 
aggregation  of  28+28+19  years,  with  the  19  years  having  been  added 
by  the  1976  Act.  Congress,  in  drafting  the  1976  Act,  considered 
converting,  retroactively,  the  1909  Act's  cumbersome  28+28  term  to 
a  term  of  life  plus  50  years,  but  declined  to  do  so  because  of  the 
argvunent  that  this  would  be  unfair  to  transferees  who  had  purchased 
both  the  original  and  renewal  copyright  terms  by  assignment  from 
authors:  switching  to  a  life  plus  50  term  for  these  already 
assigned  works  would,  it  was  said,  would  deprive  them  of  their 
bargain,  i.e.,  to  exploit  the  work  without  the  author's  further 
permission  during  the  "full  term"  of  copyright,  which  was  at  that 
time  56  years.  As  a  result,  for  "old  act"  works  (works  published 
before  January  1,  1978),  the  1976  Act  continued  the  1909  Act's 
structure  of  measuring  the  term  of  protection  from  publication, 
rather  retroactively  providing  them  a  life  plus  50  term.  See 
Section  304  of  the  1976  Act. 

In  my  opinion,  the  failure  to  convert  to  a  life  plus  50  term 
for  old  act  works  was  a  mistake  and  confused  two  different  issues: 
the  first  being  how  to  measure  the  term  of  protection,  the  second 
being  the  need  to  honor  a  transferee's  contract  to  exploit  a  work 
for  a  maximum  of  56  years.  This  unfortunate  decision  has  caused 
U.S.  trade  negotiators  innumerable  difficulties  overseas  as  they 
attempt  to  persuade  foreign  countries  that  we  want  them  to  give  our 
works  —  old  and  new —  a  life  plus  50  term,  even  though  we  don't 
give  our  works  (or  theirs)  that  term  in  the  case  of  old  act  works. 
The  trade  negotiators  gamely  argue  that  75  years  from  first 
publication  is  the  actuarial  equivalent  of  life  plus  50  years,  but 
this  is  met  with  skepticism,  skepticism  that  was  eminently 
justified  before  the  end  of  1992  since  before  that  date  if  a  proper 
renewal  application  was  not  filed,  the  author  would  only  get  a  28 
year  term.  I  have  heard  that  some  foreign  countries  are  refusing, 
in  their  GATT  retroactivity  legislation,  to  give  U.S.  works  a  life 
plus  50  term,  and  instead  are  proposing  to  give  them  as  little  as 
20  years  based  on  our  failure  to  give  their  pre-1978  works  a  term 
of  life  plus  50.  At  the  end  of  my  statement,  I  outline  an  amendment 
in  the  nature  of  a  substitute  to  H.R.  989  that  would  take  care  of 
this  problem  by  going  to  a  life  plus  70  term  for  pre-1978  works, 
yet  would  still  honor  transferees'  contracts. 

There  are,  of  course,  some  authors  such  as  those  in  the 
Ansong  group,  who  will  benefit  domestically  and  internationally 
from  H.R,  989  as  currently  drafted  because  they  can  afford  to 
employ  a  lawyer  to  timely  file  termination  notices.  But  there  also 
are  a  significant  number  of  authors  under  H.R.  989  as  currently 
drafted  who  will  not  fully  benefit  because  they  cannot  terminate 


347 


32 

transfers  for  the  20  years  granted  under  the  bill.  For  these 
authors,  the  extended  copyright  granted  in  the  bill  will 
irrevocably  vest  in  a  transferee,  even  though  the  transferee  did 
not  bargain  for  the  extra  term.  In  fact,  all  the  transferee  ever 
bargained  for  was  a  copyright  term  of  56  years. 

Here's  why  this  will  occvir.  There  is  no  special  termination  of 
transfer  right  for  the  new  20  years  granted  old  act  works  in  H.R. 
989.  Instead,  the  bill  will  apply  the  existing  termination  right  in 
Section  304,  or  will  it?  Because  the  time  limits  for  termination 
have  not  been  emended,  for  works  first  published  between  1920  and 
1933  (coincidentally  important  years  for  the  Amsong  group) ,  the 
five-year  window  for  termination  has  already  passed.  These  authors 
or  their  children  can't  terminate  even  if  they  want  to.  And  with 
each  successive  year,  authors  or  their  children  will  lose  the 
ability  to  terminate  for  another  year's  works:  in  1996,  authors  and 
their  children  will  no  longer  be  able  to  terminate  for  works  first 
published  in  1934. 

This  manifest  unfairness  can  be  prevented  by  vesting  the  extra 
20  years  solely  and  directly  in  the  author  or  his  or  her  heirs. 
Purchasers  of  copyright  can  then  renegotiate  contracts  and  pay  for 
the  real  value  of  the  extra  20  years,  rather  than  reaping  the 
wholly  undeserved  windfall  of  a  contract  negotiated  75  years  ago. 
This  can  be  done  either  by  amending  the  bill  to  simply  vest  the 
extra  20  years  in  the  author,  or,  by  going  to  a  term  of  life  plus 
70  for  these  old  act  works  (as  well  as  for  new  act  works  of 
course) .  What  follows  is  my  life  plus  70  proposal. 

Proposal  for  a  Term  of  Life  Plus  70  for  All  Works 

There  are  a  number  of  ways  to  eunend  the  bill  to  protect 
authors.  One  way  would  be  to  convert  to  a  term  of  life  of  the 
author  plus  70  years  (if  the  decision  is  made  to  extend  the  term) 
for  old  Act  works,  while  still  preserving  the  ability  of  the 
publisher  to  exploit  the  work  according  to  the  telrm  of  the  original 
contract.  This  should  also  include  the  1976  Act's  extra  19  year 
term  for  works  for  which  the  author  had  to  terminate  the  transfer 
between  1978  and  1995,  thereby  not  disadvantaging  transferees.  (The 
author  would  still  have  the  right  to  terminate  where  currently 
available) .  This  would,  importantly,  accomplish  other  objectives: 
it  would  prevent  authors  from  outliving  their  copyrights,  it  would 
give  the  new  20  years  to  authors,  it  would  harmonize  U.S.  law  with 
EU  law,  and  it  would  help  our  trade  negotiators  get  a  term  of  at 
least  life  plus  50  in  foreign  countries'  GATT  retroactivity 
provisions. 

Here's  how  the  proposal  would  work  in  practice.  Assume  in 
1920,  an  author  transferred  his  rights  in  both  the  original  and 
renewal  terms  to  a  publisher.  The  publisher  published  the  author's 


348 


33 


book  in  1920.  The  author  died  in  1950.'^  The  work  was  renewed  in 
1948.  Under  the  current  regime,  the  copyright  lasts  for  75  years, 
expiring  in  1995.  Under  a  life  plus  50  regime,  the  copyright  would 
expire  in  2000;  under  life  plus  70  in  2020. 

The  original  contract  between  the  author  and  publisher  for  the 
56  year  tei-m  granted  in  the  1909  act,  as  well  as  the  19  years  added 
in  the  1976  act,  would  be  honored  in  the  proposal,  meaning  that  the 
publisher  would  receive  the  full  benefit  of  its  contract  for  75 
years  —  until  1995.  In  1996,  the  copyright  would  vest 
automatically  in  the  author's  heirs  for  the  duration  of  the 
copyright  —  202  0  under  the  life  plus  70  year  regime.  The  author's 
heirs  would  thus  be  free  to  negotiate  a  contract  for  the  remaining 
25  years  on  the  copyright. 

This  approach  would  give  to  purchasers  of  copyright  the  full 
benefit  of  what  they  had  bargained  for  with  the  author,  plus  the 
windfall  they  received  in  1976.  At  the  same  time,  it  would  place 
U.S.  law  in  harmony  with  the  rest  of  the  world  and  would  give  to 
the  author  or  the  author's  heirs  the  benefit  of  any  extension  of 
term  consistent  with  Congress's  power  to  grant  copyright  to  benefit 
authors. 

Mills  Music  V.  Snvder 

The  19  year  termination  right  for  old  act  works  granted  in 
Section  304  of  the  1976  Act  contained  an  exception  for  derivative 
works  created  under  a  grant  from  the  author  or  transferee  before 
termination.  This  exception  permitted,  for  example,  a  record 
company  that  had  licensed  from  a  music  publisher  (which  had  itself 
been  licensed  by  the  composer)  the  right  to  make  a  record  of  a 
musical  composition  to  continue  to  sell  the.-  records  after 
termination,  provided,  of  course,  it  continued  to  pay  the 
previously  agreed  to  royalties.  These  derivative  royalties  were, 
however,  to  go  100%  to  the  author  after  termination.  In  Mills  Music 
V.  Snvder. ^^  the  Supreme  Court,  in  a  5-4  opinion  held  that  the 
author  does  not  get  100%  of  the  royalties  but  has  to  share  them 
with  the  music  publisher  according  to  the  terms  of  the  original 


^^  Because  in  a  number  of  cases,  a  75  year  term  provides  a 
longer  term  than  life  plus  50  regime —  in  the  hypo  given  in  the 
text  if  the  author  died  before  1945  —  there  will  need  to  be  a 
transitional  section  continuing  copyrights  presently  protected  by 
virtue  of  existing  75  year  term,  otherwise  the  result  would  be  to 
place  into  the  public  domain  works  that  are  currently  protected.  An 
alternative  to  a  transitional  section  would  be  to  provide  an 
"either/or"  way  of  measuring  term  as  in  current  section  303.  Under 
such  an  alternative,  the  author  or  the  author's  heirs  would  receive 
the  longest  term  possible  —  either  under  a  life  plus  70  or  under 
the  current  law. 

'2  469  U.S.  153  (1985) . 


349 


34 

contract. 

The  Copyright  Office,  which  had  drafted  the  section  in 
question,  passionately  argued  that  the  Supreme  Court  was  wrong  and 
had  cheated  songwriters  out  of  an  important  part  of  the  1976  Act 
deal.  A  bill  was  introduced  by  Mr.  Berman  to  overturn  this 
erroneous  decision,  but  it  was  not  passed.  H.R.  989,  which  is  being 
pushed  by  music  publishers,  should  correct  Mills  Music  by  requiring 
that  the  author  receive  100%  of  the  royalties.  Music  publishers 
should  not  reap  the  unfair  advantage  of  Mills  Music  for  yet  another 
20  year  term  extension.  Failure  to  reverse  Mills  Music  will 
compound  the  injustice  by  depriving  authors  of  the  derivative 
royalties  Congress  intended  them  to  have  during  the  new  20  years. 

Reciprocity 

H.R.  989  is  not  reciprocal;  that  is,  it  grants  a  term  of  life 
of  the  author  plus  70  years  to  works  of  foreign  authors  without 
requiring  the  foreign  country  to  grant  U.S.  authors  the  same  term. 
Thus,  Japanese  authors  would  enjoy  a  term  of  life  of  the  author 
plus  70  years  in  the  United  States,  while  U.S.  authors  would  only 
get  life  of  the  author  plus  50  years  in  Japan.  If  the  motivating 
force  behind  H.R.  989  is  the  reciprocal  provisions  of  the  EU  term 
directive,  it  is  perplexing  that  H.R.  989  is  not  reciprocal  too. 
Reciprocal  protection  beyond  life  plus  50  is,  moreover,  consistent 
with  —  even  required  by  —  Article  7(8)  of  the  Berne  Convention. 

Thank  you  for  the  opportunity  to  testify,  Mr.  Chairman. 


9.^-9R7  QR  _  1  9 


350 


mssoMM 


■l!lliniJ,|i|UI.|iMl..lliMilii'lll.ll.i.lllMlil.li.|.|JI.I!l.l.l.llJ.il]J:liJ|i|.i.lJJl, 


The  Thorny  Issues  Of  Int'l  Royalties 

R&B  Acts '  Problems  Just  Scratch  Surface 


NonfMiaieni  contrsru.  or  ihrt^e  In  the  L'^^  morv  trconl  campuiir> 

actcd  ajnin»[  ihe  vtiMn'  uiicrvaL-  *tv  making  «itein|io-  Ui  n-eufy  Mime  <it 

HtbivncKl  u»«  of  «nj*u  nurler"  the  huloncal  mjuAtirvk  aufrerr<t  b> 

FOUNDAHON  HH    Jvifl 


BRTMRN 

pDREVEFl 


Radio  Station  Cap 
Elimination  Ulcely 


•  Inequiuble  or  TwneKiMent  pub<  fUB  uMuu  Royahy  ntei^  of  109-  mn 
luhinn  contncu  for  BongvTitfn  being  wt,  while  unrwmipe<1  b)danc«> 

•  Pir«<->  and  unauthonierl  iiM  of  «rebeing»Titt£non'iBillb(Mn1.  M«rrh 
am>i.^'  rTu>ier»  1 1  These  ■ctMn:>  luve  entrenrieird  «i^- 

•  Mikleading  lirenking  by  pinus  niTiatni  detavie  tbuut  Uw  uirier  mmm;  of 

•  Ljreles*  hcensing  bv  legilimale  ll'iulm-cduH  fMif/r  'Oi 


ILLINOIS  ACTS  ENHANCE 
THE  CHICAGO  SCENE 


Ice's  LJon  Reigns 
As  Calypso  IQng 

■  BY  ISAAC  FERGUSSON 


IC7  RflOTtb  nwrts  the  SR-yovnU 
letRnrr*  70Ui  year  ■■  a  calyfau  cum- 
in I^CM.  Roanng  Lwn  made  hu- 


Blessid  Union  Of  Souls' 
'Home'  Alone  At  No.  1 


NEW     *L8UM     C  OHIW 


VAN    MORRISON 
DATS    LI  KC    THIS 


DAIS  (.me  THIS 


351 


fl^rfHdRNY  ISSUES  OF  INTERNATIONAL  ROYALTIES 


II  hpn^fil  ^>t  for 


auirr  of  what  nfhV-  thpv  own  or  th 
ih^ir  r^rorrtin^  are  beinjr  yxploiu 


o»V»«+>«herihi' 


>  Sav^  Flovfl 
lhS«rtneySei 
A-vonat^s  as  rinancol  manif 


rBB    ! 


;.  ~Thf  r 


tunl-liKkstnnes  Manv  artiM^ 
cnLtlfr'  rtont  know  where  U)  g( 

A.«  KinK  otill  (Tcnnii  and  U 
t«^-ivp|\  he  IS  differpnl  from 
ihrtaB 


r  iheir  live- 
rRABai 


nitT»r<l  nirhu  u 
ifwl  roubl  tav  r 


ww»  m-yi  fwahjes  at  aJI ' 
r  laheU  mtp  not  handinfr  o 


Say«  AC 


lorp  Ktn^  M^rwil  with  S«rienbeiT 
•am  BVO  says  Lihrrman.  "hf  wa^ 
fiir  ft"  royaluo  from  Mortem  Re- 
.  from  Carieu  hi  we  mied  and  iro' 
If  ropvn^U  hucli " 
■*>  Recorris.  whK-h  n*n»  njrhO-  to 
4'Nlpm  nUkV  ifi  Europe,  hv  abio 


.nfn 


n,rht- 


make  altempU  lo  finri  lhe«e 
Hu^hevMV*  "Manynf  the 
ihemielve^  hno»"n  u>  a*,  awl  n 
been  eajiv  to  Rnrt  '  Hughe* 

label  rienve*  from  lirewing  ih 


the  majonlvof  ll 
for  Europe  to  i 
Kecordv  a  label  o 


EMI  u>n*t  ini*re«ted  in  N evert helea.*. 
we  are  talkinfr  about  putting  out  a  fv^ 
thou«*nri  ropie*  of  mart  uUee.  so  the  II- 
cenne  fee*  are  not  huge  " 


negotiaied  long  before  i\ 
lo  hire  manairm  ami  tl 
martietplaH-  wv  thuuirl 


i^«-ianHbep.n 
•  inUTTWtJorwI 


queen  *  In  hi."  autobiogmphv.  Littlp 
Rjcharri  recaJb  how  when  the  i.**ue  of 
royaliiei'  wa*  rained  Duke  Peacock 
chief  Don  Rohev  punched  hiri  «>  harri 
that  he  rteveioped  a  hemia 

My*  Roger  Armstrong,  nunajnng  Hi- 
reetor  of  Ace  "The  people  running 
lhei»e  Wielx  ran  from  the  cnminaJ  to  the 


EDITORIAL 

All  Must  Address  Past  Moral  Failures 


T>ilt  ■  Meed  to  en  in  wtuch  one 

grat  R4B  m  blUB  matt  cf  the  pMt 

In  a  MBtbng  mnilten  of  the  ens- 

Ml  gtrauB  </ Robert  Jofanvn.  Mi  Co- 

himbto  mmdingi  dating  bech  more 

eeee  in  I9B0.  end.  more  recently,  the 
bert-MlUng  'Foree*  Gump"  aound- 
tr*ck  featured,  aa  befita  Ka  aub)eet 
mtfur.  a  chronokvai  aawig  nf  RAB 
maMCT*.  In  addltioa  rmmermu  CD 
boi  r«««perti»«a,  aaaenbted  with 
kivii«  «botanM|i.  m  pennmM  doc 
nneni  of*  BUM.  mnvtafatr  feitae 
creative  en  in  AmoiekD  maaic  And 
reedere  of  Bfllbowd'a  Comreemry 
p^e  n*y  ranO  a  ptar  by  BMl 


S*cBy.  the  nuBk  indtatry 


taontybe- 
«hbnw)- 
and-bntter  Meoee  reganluig  the  wel- 
fare <tf(heae  vlvta. 
One  of  the  nnuK  tndoatry'i  best- 

anugtypBiodafi 


protection  for  tbem- 
•  and  tt«ir  famfltoa  Wkh  the  CD 


rampanMa  of  thoee 
who  hiJed  lo  do  the  ngbt  thlog  an 
maktng  Ttew  dollari  frofn  the  eftte  of 
thci. 
tfo  pCTpecraled  by  ownen  ol  maelen         Thnragh  the  efforu  of  indtridulB 
andaongcnprT«ht*^n»tvtMB0Hi     aad  or^ittMkna  «ho  taa«e  tad  the  tn- 
BMgwnten  who  mainly  made  their     doatry'i  ootcry  sgiiut  the  tordid 


way  (If  not  much  of  a  Hvtng)  tl 


»  RAB      prwtkca  of  the  paat,  a 


dentCEO  FrmncH  Prattn  to  the  Mq' 

Z.  I9ee,  aaue.  wtwn.  calling  tftaitm  to 
the  induatr/a  cfaarttaUe  endesmn. 


rer.  ttenlayet 
an]  ftirthff  falDkne  to  otfav  marketa. 

».».  v.»»->-.»     Yea.  iRBty  ■rT'"'*'*  to  l^iL  ttai^  eontlntie  to  benefit  from  Icgeadsry 

Rbjthn  A  Blaaa     raonlly  qaMtloublt.  eontnctiul  R«B  and  bluet  eatalofe.  many  of 

FovDdabon-t  mlatfoo  to  help  R4fi     oU^bam.  (Mm.  ttwngh  thefc-om  wUeb  fly  oder  the  bMoen  <tf  raa^v 

intataiced.«|«teB7thrn«hlB     IgDonoea  toe|Xtek.«-em^itn|.-  naMcawn^^a-TV^rfthetag 

-        -  '      aeevptad  fwltry  f •»  m  m  — ' '   *-—"►-*-* 


lVoI- 


vadA«icrthonR 


the  wQftfe  MeDltoa  U 


and  Billy  J  Knmer.  "Sure, 
re  a  lawyer,  if  you  have  the 
to  thaL  and  track  evervthtng 
.eWorld    How  many  older 


top  by  lar^w  l«bete  can  have  a  benefi- 
rul  effert  And,  provided  that  owner- 
■ihip  of  maMer  nghu  »  not  in  d«pute.  It 
L*  3  relairveiv  *ir*tfrhtforw»rd  matter 


whoni  »ry  maguine  pub)i.-*her»  gnring 
wi-a>  free  CD*  «"ilh  their  puWwitJon.* 
Th«>ma>  BoneUi.  CEO  of  Lof  Ange- 
U^h*MHl  Celebniv  Liconjiing.  art*  on 
hehalf  of  ariwtf  or  their  enUles,  indud- 
■ngihr  Everi>  Brothers  Kr»nk>eAval- 
.fv  DpI  Shanmin.  Oene  Pitnev  and  Ray 


h  bought  the  Roulette  n 


Japanese independei 
lumbia  bought  the  « 
Reeont*  catalog  tn  earl 


p,  "One  probtem  • 


very  mrtjculous."  he  nyf  "I  met  • 
r«al  t-anasern  and  i-dotter«  in  my 

Armitirong  add*  it  would  be  fo 
to  asftume  that  all  labels  had  the  t 
attituden  toward  mte^ational  k 
Many  were  aclivety  engaged  m  i 
ple»  ar>d  widespread  ii 
censing  'If  vou  look  a 
the  American  Deera  li 
nending  thing*  all  aroun 


ll  hapi^nf  a  lot  toothers  t.i 
I  ver\  iminrtanl  iwpect  of  tl 

^ml  underMand  il   ^uite  f 


T  future  te^notogie*  *urh 


traftedfrom  tJ 


Mvs  Lichtenntein  "Some  label*  had 
provision  for  25-year  contractu  with 
lhe*e  artmA.  and  after  that  they  could 
nop  payment." 


The  (io««ion  of  licenmng  ir 


A  of  pnontie*  when 


partiesi  lo  change  thvir  atui 
artwt  royalties  Effort*  t 


-Som 


nEMIv 


*Savc 


e  company  «  nirategK  mar*elin 
e  RouleUe  purrhaw 


y  didn't  pay 
royalties  lo  artuitit  For  example.  Dex- 

eaiboard  about  uur  Savoy  rewoies  and 
«-Ttiu  u>  us  afJting  that  «he  be  paid  the 

Hafhoume  say*  NipfMio  Columbia  » 
now  paving  Gordon  «  widww  the  re«TUi- 
Hte  royalUe*  for  «ale^  m  Japan 

Vet  MJCh  mdves  often  bnng  loo  little 


intraducing  an  intematxtnal  dimen*  ton 


the  plaintiff  and  defenriani  clawni 

decadecago 

Sometime*  court*  provide  clear  u 


I  had  the  nghi*  to  expk>il  t- 


their  ongmaJ  deals 


elicTTvnng      Sfill  000  in  damagefi.  as  > 


352 


fn£  tHbRNY  ISSUES  OF  INTERNAnONAL  ROYALTIES 


ihr  nuat«rs  r  BillboArd.  F«b  2h.  IVH ) 
When  there  •>  even  the  vlightex 

<)ue»uon  over  the  oxi-nenhip  of  ■  cmm 

bog.  It  nm  otuae  problem* 
Almost  everv  month  at  ieiti't  one 

fre.h  ls«*uit  appear-  <n  the  Hifth 

Court  h*re.  wUh  one  jiartv  claimmft 

that  tie  nfthtf  to  oilalog  maaters  hive 

beeninfnngvri 
Uno  of  the  most  bitter  riinput«a  ha^ 

nffhtf  to  thi-  CheiLK  caUlofi  ReiMue* 
-IKi-ulM  ( 'hari>  Recont>  vbim^  rt  ha.- 
nunewluaiieridhu.  i. 


dr\  I9UU.  alletpng  infnngemeni  of  cor> 
nghi  on  Hi  recorrtings  mctudmir  wotIf 
hv  Chuck  Berr. .  Snnny  Bov  WiUuimion, 
Muddy  Waters,  and  Buddy  Guy  liKei 
peeled  that  the  tnate  will  uke  plac«  nejn 
ApnL  There  o  also  tndemarli  acUon  rr 
g&rding  the  Chesa  nwne  and  logo  in 
France  and  the  Benelux 
The  increue  m  nich  oaei  does  not 


repreaenied  8  H  of  uniU  ind  19*  of 

The  BPI  does  not  keep  delaiU  of 
«-hiU  proportion  of  these  lain  are  RA  B 
reetauek.  but  s  bnef  survey  o(  tities  in 
Lorwion  duc^Mnl  and  rtearence  Mores 
(Ugge^l^  Ihal  401 -SOI  of  budget 
repenotrv  on  aale  i*  t\  R&  B  and  }miz 


■  Johnjton.  Muddv 
Lead  Bellv.  and  John  Lee  Hooker 

In  min^i  inntjincea.  the  appropnaie 
nghlA  arv  taud  Ut  the  nght«-hoMers.  aJ 
thougn  \3tnic\  undeTmintv  a  gnat  deal 

amnuni  of  "gr»>''  prrxtuct  m  the  miuiirt 

EstimateK  of  the  annual  lutu«>  lu  iht' 
rectirri  tndu»Lr>  thriMJgh  ratjtlug  pirBC\ 
vary  from  a  consefN-Un-e  SlOO  mUIwn  u> 
%SM  million,  and  a  significant  prupor- 


MCA.  for  exampte,  says  it  sold  some 
a.OOO  copies  m  the  U  K  of  a  Howim 
Wolf  compilaUon.  "The  Genuine  Arti- 
cle." which  sold  for  more  than  12 
pounds  ($1920) 

Many  of  Ihe  disputes  in  the  R4B 
budget  market  stem  from  the  pioneer- 
ing spmi  of  the  U  S  record  industr.' 
before  major  Ubels  lightened  their 


The  CD  boom  of  the  '80s  and  '90i 
produced  huge  demand  for  catalog  ma- 
terial, eapecially  among  older  buyers 
The  market  is  essentially  split  mto  two 
distinct  parta.  Fir^L  there  are  the  high- 
pnc«d.  well-presented  LitJes  that  conw 

are  aimed  at  collectors,  and  retail  for 
CO-tSO  By  contrast  the  budget  mar- 
ket IS  charactented  by  "cheap  and 
cheerful  packaging."  and  single  discs 
reuil  for  U-%S  and  four-CD  sets  at 
about  S14.50 

Ace's  Armstrong  says  that  the  com- 
pany has  some  900  tAJes,  most  of  them 
selling  St  s  wholesale  pnce  of  7  20 
pounds  tSl  I  60).  making  ihem  a  full- 
pnce  product  The  mow  we  can  expect 


and  their  heirs  may  be  losing  signifi 


It  year  waa  worth  90  9  million  pounds 
14&miUion)or  11  If  of  the  market 
Jue.  and  18-9%  of  U  K-  trade  deliver 
1  at  33  5  million  unii«.  sccording  t^ 
0  British  Phonographic  Industry  In 

>ubled.  In  199U.  the  budget  market 


comptlaiMiu  aa  proof  of  cfaam  of  titie. 
To  unsuspecting  inlemational  open- 
ion,  all  appears  to  be  in  ortler  TV  tax 
kxiphote  wv  doMd  by  1986.  but  not  be- 
fore the  same  lOO-plus  maatery  had 
been  licensed  r^verxl  thousand  times 

When  CD*  repopularmd  the  rrper- 
inxTV  many  of  the  nghu  lo  manufac- 

licenaes.  although  the  »heer  number  of 


when  ,rau  consder  the  poaaibdit^  of  it 
being  available  online  '  Langford'a  ei 
penenee  with  attempting  to  identils 
rrroniingM  ted  her  i>i  hHieve  that  iherf 
in  no  mibrtituie  for  getting  tj 


-Wev, 


Thu. 


sRAB 


.  'fi06.  ( 


.t  first  Bight  I 


pu-ai^  material  and  whai  la  legitimate. 
henc¥  the  expreasiofi  "gray  "  There  la  a 
huge  market  in  licenses  for  comptla 
lions,  in  whMrh  the  unsuapeetiag  as  well 
as  the  unscrupukMs  can  end  up  buying 
something  tea  than  the  genuine  oitKle 
Master  suppliers  provide  licenses 
for  veraions  of  aongi  that  they  daim 
•dbyoaeormon 
I  Tlie  DAT  that  b- 


•ound-ahkea  to  round  out  the  number  of 
Bongs  to  produce  a  package  thai  can  be 
sold  on  the  open  marliet  Dtitributorv 


nth  cnnfidence 

Ken  Nagai,  A4  R  dw*«or  of  Tokvo- 
Mued  -(lecuiltv  Ubel  JIMCO  Keconl>. 
i  hich  rvi>:<ue>  manv  jaxz.  R&  B.  ami 
ock  titie»  frum  uutMile  Japwi,  wvc  find- 

ime"  I  ha^e  10  go  through  five  or  six 
vopie.  and  it  oin  utke  up  lo  nro  yearK 
Vith  oW  master  renmting.  sometimes 
e  nghl* 


Says  Andreaa  Heyn.  staff  Lawyer  at 

"Great  importance  is  attached  to  sut 
ing  the  precise  titles  to  be  sold  as  well 
as  sn  exclusion  snd  indemnification 
dauae  We  frequently  turn  down  cffera 
becauae  the  legal  sduaUon  appears  un- 
clear or  only  nonexrluuve  ngtila  are 
bemg  offered — ths  makes  i 


The  International  FedertUon  of 
Phonogram  and  Videogrmm  Producers 
ilFPI)  prevwualy  mdicaudthat  it  had 
a  commiiment  to  atiaeking  catalog 
piracy  However,  since  the  beginning  of 


that  the  different  <. 
tampered  original, 
pitch  changed  Oft' 


ID  the  material 

^The  arUnti'  were  able  ti.  irieniifv  i 
reconlingy  tmmediaiek .  .«ui-h  a.*  par 


aMt-time 


worae  after  the  Reagan  admtmstniion 
created  s  tax  kiophole  for  "cultural  in- 
vestments' in  the  early  'SOb  This  defi 
nition  could  include  the  acqutsitjon  of  a 
sound  recording  maato-.  urespective  of 
whether  it  was  actually  turned  into  a 
manufactured  prtiduct  Becauae  of  the 
tax  advamagea,  many  artma  sold  their 
master  rights  lo  shelter  companaa  and 
were  able  to  realise  significant  sums 

Many  of  these  companies  changed 
hands  rapidly,  with  each  sale  repre- 
senting a  10%  tax  break.  The  paper- 
wnr^  created  si  tbe  time  of  sale  is  now 
used  to  dupe  foreign  companiea  that 
WUh  lo  enter  the  budget  market  While 
the  DAT  the  Ixcnaee  receives  may  cor- 
relate  to  the  tndi  liatsig  on  the  paper- 


ofnoai  in  that  area. 

MargD  LangfortL  who  previously  un- 
dertook catalog  ptrary  worV  at  IFPl.  is 
now  s  partner  with  the  London  law 
firm  Green  David  Cornray  A  Co 

"No  one  apfaeoated  the  value  of  this 
repertoire  until  CDs  came  along  [ 
don't  think  it's  going  to  gel  any  less 
popular  m  the  future,  so  it  needs  pro- 
tecting This  IS  eapecuilly  important 


.hentheTrwle-Rebteillit 
(V  Uke^effert  ih.>«.-ai 
ipvnghi  HxwH^rr.  mnik 
I  the  (KihlH-  •kmain.  U-lim 


Like  expert  gnlfer- 


njUCOOHMi 
An  added  problem  is  that  somf 
recordings  ore  efTectivety  m  the  public 
domain  in  some  parts  of  Europe  Ger- 
many, for  example.  <mly  started  pro- 
tecting non-German  recordings  after 
1972.  and  mtematnnal  recordings  be- 
fore that  date  are  technically  m  the 
public  domain  and  free  of  performera 
copyrights  if  sold  there 

their  way  mto  other  European  Union 
stales  snd  to  most  parts  of  the  world 
where  there  ■  a  market  for  them 

SequeTs  Fiaher  saya  that  is  Ihe  mam 
factor  affecting  hia  company's  busi- 
neas  "It's  reallv  annoying  when  you 
pay  for  a  licero*  and  put  out  a  record, 
and  someone  else  has  got  it  for  free  " 

In  Japan,  master  rights  protection 
does  not  apply  ui  iwund  recordings  is- 
sued before  191)8.  and  many  small  com- 
panies release  lo»  priced  CDs  of 
Imainly  non-Japane»ei  maienal  re- 
ronled  before  Ihal  year  and  only  have 
lo  pay  songwTiting  incomes 


The dawTMib-i> thai  TUI)'<ik«>.ii»< 
aaoni  cituen»  ..I  miinli^r  Mai.-,  ji.^ 
recourw  if  <;ATT  m^'mU-r  .l-lr>  .b 
n..l  iNu^  hfguaatam  that  i-n^iin-^  }>r.- 

«*hi'n:'  |arar\  rrmain*  a  (inJilrm.  xal 

ivmain  iinimnn-ted  until  well  mli<  tin 

In  thv  kmg  term.  Mtv  <tn\\  fval  "lii. 
Hun  t,t  catakjg  pinicv  aiKivateil  Ik  tn 
>Mler»  i>  lur  the  m^jiv  UU-U  l^i  itHcwl 
their  iiwn  calalug^  l>v  h4\ing  a  lutl-liiii.- 
antj-piracv  iifTmal  aht>  can  wirk  »iiii 
libr*n«n»  and  eMCum'e>  in  the  cam|M 
n>  to  apprehend  pirate*  At  preaeni 
hoM-ever.  the  funding  for  IFPl  ■  cau 
log  piracy  prngram  appesnt  to  huM- 

Piracy  not»ithatandin(.  some  iMtuf~ 
uy  obaerven  say  rt  is  eatiy  lo  cnticiu- 
early  record  labeb  for  behavior  '.hai 
aeema  reprehenaible  by  todayV  aUn- 
darrti  Yet  ihene  people  ««fe  not  wort - 
ing  in  twdaya  orrlered  environment. 
where  the  long-term  survival  of  the  m- 
duairy  w  taken  for  granted.  They  wen- 
working  tn  a  very  high-nak  buainerv 
that  could  fold  St  any  moment  For  Ih 
artiau.  luo.  It  was  often  more  iem()ting 
to  live  for  the  day  ami  forgo  royahien  in 
favor  of  a  lump-sum  payment 

As  Ace's  Amstrong  says.  ~lf  you 

MtxikI  yuu  rather  have '  C«»h  when  the 
man  ofTereil  it  In  yt>u  or  the  promu*-  ••! 


imgtOK  DC  SUve  MrClurr  w  TiA^ik 
and  Waljyatig S/Mhr ,»  Humbury 


WORK  GROUP'S  MN8  AT  'NEXT  LEVEL 

Honltnu^fToni  fjofft  W) 


dR4B 


of  booliegs  and  rerecordings 

This  paperwork  can  also  be  used  as 
the  baou  for  auppoaedly  legtumaie  titie 
documenu  that  accompany  the  DAT 

sheltera,  the  new  compan«s  were  able 
to  grant  licenses  to  exploit  a  certain 
number  of  tracks  m  a  certain  onler  for 
a  given  temtor^.  Thousands  of  auch 
nonexclusive  bcenoes  were  granted,  of 
ten  uaing  the  same  tracks  for  the  aaine 
territory,  but  in  a  different  onler.  The 
licenses  issued  by  the  shelter  compa- 
nies expressly  forbade  altering  the 
running  order  and  also  prevented  the 

from  the  compdatioo 

In  reality,  these  restrictions  are  fre- 
i)uently  ignored,  snd  many  licensing 
companiea  use  documents  from  these 


t. -I've  I 
'o 
tiaUy  be  serviced  lo  R&  B  n 
followed  by  d 
Work  plans  to  service  fi 
remixes  to  sppropriste  stations 
AyerafT  sdmits  that  gaming  RAB  air- 
play will  be  the  label's  biggest  chal- 
lenge, but  IS  confident  the  group  will 
ftndshome 

Mainstream  RAB  programraera 
aren't  automatically  dismiaaing  "I've 
Got  A  LitUe  Something  For  You'  be- 
cause of  lU  U  K  approach  to  RAB 
Say«  WQUE  New  Orleans  PD  Gerod 
Stevens.  Their  profile  doean't  neces- 
sarily have  lo  meet  your  sound.  If  lis- 
teners like  them,  well  play  it* 

WEDR  Miami  PD  James  Thomas 
says  MN8  will  not  be  automaucally 
counted  out  just  becauae  it  is  U.K 
based  *'ll  won't  beany  more  difflcult 
for  them  than  kical  amsts.  if  the  song  B 
there- 

However.  reUilera  m  black  commu- 
nities say  the  group  may  have  a  ddBcult 
road.  Chicago  independent  retailer 
George  Daniels,  owner  of  George's  Mu- 
sic Room,  ates  poor  record  sales  of 
popular  R4B>>p  act  All-4-0r«  at  ha 
More  aa  an  example  of  M  hUT)  challenge 
alwsd.  "i  thought  Uwtr  song  '1  Swear' 


t  Badd."  he  says  'Both  groups  did 


had  rough  going  here  Well  pull  tn  s 
pop-soundnig  set  every  once  in  s  while, 
but  (MN8]  going  the  rema  route  IS  the 
best  way  for  them  to  do  well  with  my 


ittitrj  Morae.  buyer/ 
Lanaing,  Mich  -booed.  l&«u>re  Where 
Hoiae  Reconls  has  s  broader  perapec- 
tive  and  says  domestic  Ri  B  fans  don't 
expect  U.K  acU  lo  sound  like  US 
faaKdMta. 

Says  Morse.  "lUK  I  bands  have 
more  polyrhythm  and  overall  continen- 
tal flavor,  although  Lhia  kind  of  group 
will  probably  appeal  more  lo  younger 

poaedlomen- 

Despite  the  challenge.  Dee  Tails  re 
mains  optimistic  MN8  will  appeal  to 
US.  record  buyers  He  deacnhe^  the 
group's  music  as  "the  funk  emanaLng 
out  of  Uy  Rust  to  lUununaie  the  blind 


"Origuially.  we  stacked  our  harmorues 

sayv  'But  once  we  got  in  and  the  label 
warned  a  softer  RA8  sound.  *v  dxtnt 
overlay  a  whole  kit  of  paru  ~ 
To  The  Next  Level.' releaaed  on  Isi 


r  Reconla  m  England,  debutnl 
al  No  13  on  the  UK  albums  chart  tln' 
week  ending  May  20  The  fina  Mnglt- 
Tve  Gut  A  LitUe  Something  For  \  141.' 
peakedon  the  U.K.  singtea  chart  al  No 
2 

MN8  developed  considerable  U  K 
awareness  as  opening  act  for  Janet 
Jackson  dunng  the  European  leg  of  her 
concert  tour  m  April.  The  group  haa  a 
kA  of  energy  and  moves  really  well  on 
stage.'  says  AyerofT.  who  anticipalea  a 
large  female  following  in  the  \AiS- 
year-old  demographK 

Becauae  the  group  is  so  Rucceuful 
outaide  the  US..  MN8  haa  been  conUn- 
uoualy  lounng  and  will  not  have  unw 
for  promotiunal  datck 

Although  Work  IS  releasing  -I'vi- 
Gut  A  Utile  Something  For  You"  aa  it/- 
firbt  U  S  single,  aubsequent  single> 
won't  necesaanly  fultow  the  U.K.  aflec 

In  addition  to  remising  the  firai 


It  than  the  foreign  venion.  but  n  noi 
overiy  sexy 

"We're  also  gong  with  an  album  cm 
er  that  offers  record  buyera  a  harder 


auaoMo  AM*.  10  itn 


353 


Artists  &  Music 


Sony,  Rhino  Plan  Royalty 
Reforms  For  Older  Artists 


I  BV  BILL  HOLLAND 


9838 

roUNOATlON 


^ijlhtline"  prograin 
>.  to  be  wmi  rlunnn 
lav  have  helpMt  precipi 


all  thone  involved  are  idenufied.  lu 
oit«ri.  and  fairiy  comperuaieH. "  Sonv 
Mu»c'm  AnUwny  wnMe  in  Ihe  leUer  rial- 


Denny  Corde" 
Producer,  A&.i 
Luminary,  Dies 


HmOnTMHH-  W»m»f/R«)n5»  •«»' FMt' Hdl  c*ofer  (aHu  i«nn  fllA* 
chairman  Jay  Bermar  Wfl  and  RIAA  CHM>cMni/COO  Hiary  Aosen  ai  a  VIP 
nc«0Kon  al  tfie  u  5  Capitol  BuMmg  Wl  »p«nt  me  Oay  on  Capitot  HiO  mMt«>g 

flosan  war*  hat  ho»t»  kK  iha 


a  isiua  ol  p«<tormanc«  n0nis  Ba